Siwela v City of Tshwane Metropolitan Municipality and Others (J38/18) [2020] ZALCJHB 251 (18 August 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J38/18

In the matter between:

MAGDELINE MANKILENG SIWELA Applicant

and

THE CITY OF TSHWANE METROPOLITAN

MUNICIPALITY First

Respondent

THE CITY MANAGER DR MOEKETSI E.

MOSOLA N.O Second Respondent

MOLEFI RATSIANE Third

Respondent

Decided: In Chambers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 18 August 2020.

Practice – Rule 7(1) and Rule 6(15) of the Uniform Rules of the High Court are respective remedies to challenge the authority of a person acting on behalf of the litigant or seeking an order to strike out from any affidavit any matter which is, inter alia, irrelevant. Unlawful deduction – to be lawful, a deduction from the remuneration of an employee in terms of section 34(1) and (2) of the BCEA must be preceded by a fair procedure and be substantively fair.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] This is an application by the applicant, Ms Magdeline Mankileng Siwela (Ms Siwela), against the first respondent, the City of Tshwane

Metropolitan Municipality (City of Tshwane), the second respondent, the City Manager, Dr Moeketsi E. Mosola (Dr Mosola), and third

respondent, Phillip Molefi Ratsiane (Mr Ratsiane) for contravention of sections 34(1) and (2) of the Basic Conditions of Employment

Act[1]( BCEA). Ms Siwela seeks an order in the following terms:

1.1 Declaring the deduction of the total sum of R43 183. 16 by the City of Tshwane from her December 2017 salary a contravention of the provisions of section 34(1) BCEA and unlawful.

1.2 Declaring the deduction of the total sum of R43 183.16 by the City of Tshwane from her December 2017 a breach of her contract of employment and unlawful.

1.3 Directing the City of Tshwane to pay her the total sum of R43 183. 16 with interest thereon at a rate of 9% per annum from the date of the deduction, being 20 December 2017 to date of repayment, both days inclusive.

1.4 Costs of the application on an attorney and client scale against the City of Tshwane and Mr Ratsaine jointly and severally, the one paying the other to be absolved.

Background

[2] Ms Siwela is employed as a Deputy Director: Funds and Benefits. On 13 November 2017, she received a letter from Mr Ratsiane, the Acting Divisional Head: Human Capital, Recruitment and Provision Management accusing her of being absent from work without completing a leave form and obtaining approval on 23 to 25 August 2017, 15 September 2017 and 2 to 13 October 2017. Mr Ratsiane gave Ms Siwela 48 hours to respond, showing cause why the City of Tshwane should not institute disciplinary action against her. Ms Siwela responded on 17 November 2017, stating that she would address the allegations against her at a proper forum, whilst reserving all her rights.

[3] On 29 November 2017, Mr Ratsiane instructed one Ms Martha Nkwe (Ms Nkwe) to implement and effect deductions in the total sum of R43 183. 16 from Ms Siwela’s salary for the month of December 2017. Ms Siwela became aware of Mr Ratsiane’s instruction on 19 December 2017. However, Mr Ratsaine’s decision to deduct money from Ms Siwela’s December salary 2017 was not formally communicated to her nor preceded by due process.

[4] On 20 December 2017, Ms Siwela made a written representation to Mr Ratsiane demanding that he should reverse his instruction to Ms Nkwe to effect the irregular and unlawful deduction of R43 183,16 from her December 2017 salary before the close of the SAP salary system, which was the very same day, 20 December 2017. This communication was copied to, inter alia, Dr Mosola. Also, Ms Siwela sent an email dated 20 December 2017 to Ms Nkwe stating the following:[2]

‘I am confirming our discussion that took place today at your desk 10 to 10.

I requested you to give me the instruction letter that you got from Phillip [Mr Ratsiane] about deducted pay of R43183.16. This is about 90% of my salary.

You informed me that Phillip [Mr Ratsiane] requested you to bring back the letter after I called you yesterday afternoon learning that my salary was deducted. I also want to confirm with you that you confirmed that it is not the first time that you claw back an employee’s salary without a letter. You also confirmed that you are doing this because it is an instruction from Phillip [Mr Ratsiane]. I drew to your attention that you are carrying out an illegal instruction and you insisted that it was an instruction…’

[5] Mr Ratsiane responded to Ms Siwela’s email with a letter dated 20 December 2017 stating as follows:[3]

‘Your letter dated 20 December 2017 refers.

You indicated in your previous correspondence that you will address the leave issues at a proper forum.

Please note that you have taken leave without authorization. It is a norm to you to take leave without authorization. In other instances, you claimed to have gone to work, whilst you were absent from work. Human Capital has proof in this regards.

You are hereby requested to refrain from sending me letters and sms’s. Please do not come to my office without making an appointment with my secretary. You were rude to my secretary and myself this morning. Please refrain from doing that again.

Please note that you are reporting to Mr Gerhard Van Der Merwe (Acting Human Capital Provision and Maintenance) talk to him for any problem relating to your job.’

[6] Mr Siwela responded to the above letter through an email dated 20 December 2017 wherein she copied, inter alia, Mr Mosola stating:

‘Your actions are not in line with conditions of service of my employment.

Secondly, if I am reporting to Gerhard how did you find yourself harassing me about my absence?

There is no excuse for the harassment that you are indulging yourself in besides that you are continuing to bully me as I have complained to you before. You are continuously disrespecting me as a colleague and my designation.

…No one was rude to anyone at your office except that I insisted that the secretary acknowledges receipt of my letter…

You do not have a right to dock my money without proper procedure of basic conditions of employment act being followed. You are emasculating me and as well as Martha [Ms Nkwe] whom you instructed not to tell me of your illegal actions. The instruction that you gave Martha [Ms Nkwe] is unlawful and is a witch hunt.

You can’t dock my salary and then demand that I must not write you sms’s. I had to do it because I was off sick. You have been writing me smses before and that was one of our communication medium.

I want my salary to be paid before the close of business today.

…There is nowhere I agreed with you to dock my salary.’

[7] Late in the evening, on 20 December 2017, Ms Siwela escalated her complainant to Mr James Murphy (Mr Murphy), the Acting City Manager, seeking his intervention. Mr Murphy requested Mr Piet Maseema (Mr Maseema) to attend to the matter. It is clear in the communication between Ms Siwela and Mr Maseema on 21 December 2017 that her concern was that if the docking of her salary was not reversed by the next day, 22 December 2017, her debit orders would not be honoured.

[8] Notwithstanding all the efforts to reverse the docking instruction, Ms Siwela’s salary for December 2017 was docked.

Points in limine

[9] Ms Siwela raised two points in limine, firstly that the deponent to the respondents’ answering affidavit, Mr Simon Sithole (Mr Sithole), had no necessary authority to depose to the answering affidavit and oppose the application; secondly, that Mr Sithole had no personal knowledge of the events that led to the litigation. To that extent, his averments in that regard constitute inadmissible hearsay evidence and should be struck out from the record.

[10] The respondents’ counsel deals with the above objections in his written submissions. On the impugn of Mr Sithole’s authority to depose to the respondents’ answering affidavit, it submitted that:[4]

‘the Deponent is by virtue of his office delegated and therefore authorised to depose to an affidavit on behalf of the First Respondent as Director Litigation Management. Section 172 of Municipal Systems Act 32 of 2000 confer joint authority on Group Human Capital Management Executives and Litigation Management Executive to maintain the discipline of staff members, and to institute disciplinary hearings against officials and any other staff members in general.

The First Respondent’ 2016/2017 annual report indicates a staff complement of 20 076 in its employ. Given such high number of employees it is highly improbable for the First Respondent to run its business without delegating its authority to act for day to day operational synergy. It is neither an eyebrow raising issue nor brain freezer to expect a Litigation Management Executive to delegate or even sub delegate its authority.’

[11] I deem it unnecessary to be arrested by these preliminary points. Firstly, it is trite that if the attorney is authorised to institute

or oppose an application on behalf of the respondents, the application or opposition is that of the respondent and there is no

need for any other person who becomes involved whether as a witness or someone to be additionally authorised. [5] In the event, if the authority of a person allegedly acting on behalf of the litigant is disputed, Rule 7(1) of the Uniform Rules of the High Court (Uniform Rules) is an adequate remedy.[6] Since Ms Siwela has no qualms with the respondents attorneys authority to oppose the application, alternatively, failed to avail herself to the remedy provided by Rule 7(1) of the Uniform Rules, this point in limine has no merit.

[12] Secondly, Ms Siwela asserts that Mr Sithole is not competent to attest to the activities, duties and functions of the Human Capital Department of the City of Tshwane and, as such, the assertion contained in the answering affidavit in this regard constitute an inadmissible hearsay evidence and must be struck out.

[13] Similarly, the applicant did not avail herself to the remedy provided by Rule 6(15) Uniform Rules which states that:

‘The court may on application order to be struck out from any affidavit any matter which is scandalous, vexations or irrelevant, with an appropriate order as to costs, including cost as between attorney and client. The court shall not grant the application unless it is satisfied that the applicant will be prejudiced in his case if it is not granted.’

[14] Ms Siwela’s application to strike out is patently defective as it was not brought upon through proper notice to the respondents,

setting out the grounds of the objection and referring to the specific portions of the affidavit to which the objection is taken.[7] Accordingly, the application to strike out is refused.

[15] Notwithstanding, the Court is enjoined to evaluate the admissibility of the evidence of a deponent against the principles enunciated in section 3 of the Law of Evidence Amendment Act:[8]

Unlawful deduction

[16] I now turn to the crux of Ms Siwela’a case which pertains to the legality of the deduction from her salary in December 2017.

[17] Section 34 of the BCEA warrants recounting to the extent relevant: It states:

‘Section 34 Deductions and other acts concerning remuneration

(1) An employer may not make any deduction from an employee’s remuneration unless –

(a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or

(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

(2) A deduction in terms of subsection (1)(a) may be made to reimburse an employer for loss or damage only if –

(a) the loss or damage occurred in the course of employment and was due to the fault of the employee;

(b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made;

(c) the total amount of the debt does not exceed the actual amount of the loss or damage; and

(d) the total deductions from the employee’s remuneration in terms of this subsection do not exceed one-quarter of the employee’s remuneration in money.’

[18] Evidently, in terms of section 34(1) of the BCEA, an employer is debarred from making deductions from an employee’s remuneration, subject to certain exceptions. In the case at hand, it is common cause that Ms Siwela did not consent to the deduction. Also, the deduction was not required by a collective agreement, court order or arbitration award.

[19] The respondents seem to suggest that the deduction was undertaken in terms of the contract of employment on the basis of ‘no work no pay’. To fortify this submission, reference is made to the dictum in Coin Security Cape Town v Vukani Gourds and Allied Workers’ Union,[9] quoted with approval in Mpanza and Another v Minister of Justice and Constitutional Development and Correctional Services and Others,[10] where it was stated:

‘A contract of employment is a contract with reciprocal rights and obligations. The employee is under an obligation to work and the

employer is under an obligation to pay for his services. Just as the employer is entitled to refuse to pay the employee if the latter refuses to work, so the employee is entitled to refuse to work if the employer refuses to pay him wages which are due to him.’

[20] In Mpanza[11], the applicant employees failed to tender their services after they were redeployed consequent to their unit being disbanded. They were given opportunity to make representations as to why leave without pay should not be granted for their unauthorised absence from work, an offer they shunned. Hence, the court rejected their claim of unlawful deduction, stating that as they ‘…failed to render their services to the Department, the Department became entitled, in law, to implement the no-work, no-pay and no-benefit rule.[12]

[21] The converse is true in the present case. In the letter dated 13 November 2017 addressed to Ms Siwela with the heading: ‘THE INTENTION OF THE EMPLOYER TO INSTITUTE DISCIPLINARY ACTION AGAINST YOURSELF FOR ABSENTEEISM WITHOUT AUTHORISED LEAVE,’ Mr Ratsiane accused Ms Siwela of being absent from work without complying with the leave application process and invited her ‘to

show cause why the employer should not proceed to institute disciplinary action against’ her.[13] Ms Siwela opted to deal with the allegations at the appropriate forum, which could only mean the intended disciplinary enquiry.

Nowhere, in this letter nor subsequent communication was Ms Siwela invited to make representations on the deduction from her salary.

[22] There are two issues that arise in the enquiry on the lawfulness of the deduction from the remuneration of employees in terms of section 34(1) and (2) of the BCEA. Firstly, whether it was preceded by fair procedure; and secondly, whether it was substantively fair.

Procedural fairness

[23] The allegation that Ms Siwela took unauthorised leave, which, as correctly stated in Mr Ratsiane’s letter dated 13 November

2017, is a disciplinary issue and, as such, had to be determined objectively. In Public Servants Association obo Ubogu v Head of the Department of Health, Gauteng and Others, Head of the Department of Health, Gauteng and Another v Public Servants Association obo Ubogu,[14] the Constitutional Court, albeit dealing with section 38(2)(b)(i) of the Public Service Act[15] which permits the State as the employer to deduct overpayment in salary without the employee’s consent, stated that ‘[t]he

mechanism through section 38(2)(b)(i), as currently formulated, is clearly unfair. It promotes self-help and imposes strict

liability on an employee in respect of overpayment irrespective of whether the employee can afford the arbitrarily determined instalments and was afforded an opportunity for legal redress.’[16] The Constitutional Court underscored the inviolable audi alteram partem principle, the mainstay procedural fairness, and stated:

‘Regarding the principle of fair procedure, this Court remarked in De Lange –

“[a]t heart, fair procedure is designed to prevent arbitrariness in the outcome of the decision. The time-honoured principles that no-one shall be the judge in his or her own matter - and that the other side should be heard [audi alteram partem] - aim toward eliminating the proscribed arbitrariness in a way that gives content to the rule of law. They reach deep down into the adjudicating process, attempting to remove bias and ignorance from it. …Everyone has the right to state his or her own case, not because his or her version is right, and must be accepted, but because, in evaluating the cogency of any argument, the arbiter, still a fallible human being, must be informed about the points of view of both parties in order to stand any real chance of coming up with an objectively justifiable conclusion that is anything more than chance. Absent these central and core notions, any procedure that touches in an enduring and far-reaching manner on a vital human interest . . . points in the direction of a violation”.[17]

[24] Glaring in the approach adopted by the City of Tshwane is the failure to afford Ms Siwela an opportunity to be heard on the allegations of misconduct pertaining to her absence from work during the impugned periods in a formal disciplinary hearing. As it would be clear later in this judgment, Ms Siwela has presented a detailed explanation of her whereabouts during the impugned periods. There is no reason proffered by the respondents for bailing out from the promised disciplinary enquiry, a process that could have resolved

the controversy pertaining to Ms Siwela’s alleged absence from work or annual leave.

[25] Furthermore, the respondents counsel unfairly accuses Ms Siwela of being the author of her misfortune because she failed to avail herself to the opportunity to make representations in respect of the decision to dock her December 2017 salary. As stated above, the communication from Mr Ratsiane did not refer to the deduction. In fact, it is Ms Siwela’s undisputed evidence that Mr Ratsiane had concealed the decision and instruction to dock her December 2017 salary. Ms Siwela confronted him on 20 December 2017, the day when the decision to dock her salary was effected, still Mr Ratsiane was not indulgent. To her credit, she also sought the intervention of Mr Murphy, the then Acting Municipal Manager, without success.

[26] Mr Ratsiane arbitrarily determined the amount to be deducted, which was about 90% of Ms Siwela’s salary, and effected it in one instalment with no regard to whether she could afford same. Clearly, the impugned deduction was not preceded by a fair procedure as required in terms of section 34(2)(e) of the BCEA and the amount deducted exceeded a quarter of Ms Siwela’s salary in contravention of section 34(2)(g) BCEA. In essence, the conduct of the City of Tshwane was nothing else but a capricious self-help.

Substantive fairness

[27] Ms Siwela gave a detailed explanation of her whereabouts during the impugned dates. It is also instructive that the respondents conceded that Ms Siwela was at work on all the impugned dates, save for 24 to 25 August 2017 and 2 to 13 October 2017. Even her evidence in that regard is not seriously challenged. The allegation that she was not at work on 24 and 25 August 2017 is solely based on the access card record which is disputed by Ms Siwela. It is not disputed that she was at work, on instances when she was out of the office on 24 and 25 August 2017, she did so with the permission of her supervisor, Mr Van der Merwe, and accordingly

signed the attendance register.

[28] Ms Siwela asserts that, on 27 September 2017, she electronically applied for vacation leave commencing 2 October 2017 and ending on 13 October 2017. The electronic tracking of the e-leave application management and administration process shows that her leave was approved Mr Van der Merwe and not Mr Ratsiane. She adamantly asserts further that it is common practice within the City of Tshwane that a leave application can be approved post facto. This evidence was not disputed.

[29] The respondents’ opposition is solely hinged on the leave policy and directives of the City of Tshwane. There is nothing controversial about the leave regulations because, like any other leave policy, they provide that leave should be applied for and approved prior to the requested time. However, there is a provision for late application which should be accompanied by explanation for the delay. In essence, even failure to apply for the leave before it is taken is not fatal as, with reasonable explanation, leave could still be approved post facto.

[30] Therefore, I am satisfied that Ms Siwela was at work on 24 and 25 August 2017. When it comes to the annual leave for the period between 2 to 13 October 2017, it not disputed that she did apply for annual leave through the electronic leave system which automatically notified Mr Van der Merwe of the application for approval and that the approval was granted. In fact, it is not the respondents’ case that the annual leave would not have been approved because Ms Siwela had no annual leave days due to her or because of the City of Tshwane’s operational requirements. The respondents chose to adopt a very technical defence which is unsustainable in the light of the uncontested evidence of Ms Siwela.

[31] In the circumstances, the principle of ‘no work, no pay’ does not find application. Likewise, the respondents’ alternative argument that Ms Siwela was unjustly enriched is ill-conceived and must fail.

[32] Notably, the unilateral deduction of almost 90% of Ms Siwela’s December 2017 salary effected in single instalment did not only affront the provision of section 34(1) and (2) of the BCEA, but constitutes an utter abuse of power by Mr Ratsiane. It is regrettable that even the officials in highest echelons of the City of Tshwane failed to heed Ms Siwela’s desperate call for urgent redress in December 2017 or anytime subsequently.

Conclusion

[33] It follows that the deduction of the amount of R43 183. 16 by the City of Tshwane from Ms Siwela’s December 2017 salary contravened the provisions of section 34(1) and (2) of the BCEA and is accordingly unlawful. The City of Tshwane must reimburse Ms Siwela the deducted amount with interest.

Costs

[34] Both parties seek punitive costs but for Ms Siwela costs are only pursued against the City of Tshwane and Mr Ratsiane even though he is cited in his official capacity. Ms Siwela asserts that the conduct of Mr Ratsiane in authorising the unlawful deduction left her traumatised, desperate, cash strapped over the December 2017 festive season and unable to meet the needs of her school going children the following year. Mr Sithole badly denies this unfortunate turn of events in the answering affidavit. Clearly, the respondents are not remorseful for the hardship caused to Ms Siwela when almost 90% of her salary was deducted arbitrarily and unlawfully. I wonder whether Messrs Ratsiane and Sithole can survive with a 90% deduction from their salaries, ordinarily.

[35] It is also concerning that despite Ms Siwela’s concession that she took her annual leave between 2 and 13 October 2017, the respondent attached to their answering affidavit her private photos whilst she was on vacation extracted from her private Facebook page without her authority; a fact she takes issue with in her replying affidavit. The respondents ought to have been better advised of consequences of using demeaning tactics in their opposing papers.

[36] I am satisfied that this is a typical case where it accords with the tenets of fairness and equity that punitive costs be awarded. However, I am not inclined to award costs against Mr Ratsiane as he was acting in his official capacity when he gave the instruction to dock Ms Silwela’s salary.

[37] In the premises, I make the following order:

Order

1. The deduction of the amount of R43 183. 16 by the City of Tshwane from Ms Siwela’s December 2017 salary contravened the provisions of section 34(1) and (2) of the BCEA and accordingly unlawful.

2. The City of Tshwane is directed to pay Ms Siwela the total sum of R43 183. 16 with the interest thereon at a rate of 9% per annum from the date of the deduction, being 20 December 2017 to date of repayment, both days inclusive.

3. The City of Tshwane shall pay Ms Siwela’s costs on an attorney and client scale.

__________________

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] Act 75 of 1997, as amended.

[2] See: annexure MMS11A to the FA, p 50 of the record

[3] See: annexure MMS12 to the FA, p 51 of the record.

[4] See: Respondents’ HOA p 2 para 1 and p 4 para 1.8.

[5] See: Ganes and Another v Telcom Namibia Ltd 2004 (3) SA 615 (SCA) at paras 18 and 19; Unlawful Occupiers 2005 (4) SA 199 (SCA) at paras 14 and 15; and School Site v City of Johannesburg Eskom v Soweto City Council 1992 (2) SA 703 (W) at 705F-H.

[6] It is trite that where the Labour Court Rules are silent on a particular aspect, the Uniform Rules of the High Court may be

applied and in this instance Rule 7(1) of the Uniform Rules of Court is applicable.

[7] See: Public Servants Association of South Africa v Minister of Department of Home Affairs and Others [2013] 3 BLLR 237 at para 14 -15.

[8] Act 45 of 1988.

[9] 1989 (4) SA 234 (C) at 230I.

[10] (2017) 38 ILJ 1675 (LC); [2017] 10 BLLR 1062 (LC) at paras 30 -32.

[11] Ibid n 10.

[12] Mpanza supra at para 32.

[13] See: annexure MMS1 to FA p 25.

[14] 2018 (2) BCLR 184 (CC); (2018) 39 ILJ 337 (CC); [2018] 2 BLLR 107 (CC); 2018 (2) SA 365 (CC) at paras 60 – 72.

[15] Act 105 of 1994.

[16] Ibid at para 67.

[17] Ibid at para 63.