Solidarity obo Mqoni v South African Police Service and Others (J 658/24) [2024] ZALCJHB 521 (1 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 658/24

In the matter between:

SOLIDARITY obo DC MQONI

Applicant

and

SOUTH AFRICAN POLICE SERVICE

First Respondent

MINISTER OF POLICE N.O.

Second Respondent

THE NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICE

Third Respondent

Heard: 28 June 2022

Delivered: 01 August 2024 (This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 01August 2024.)

JUDGMENT

PHEHANE, J

‘I firmly believe the rule of law as the foundation of all our basic rights’

– Sonia Sotomayor

[1] This is an urgent application in terms of which the applicant seeks to interdict the respondents from resorting to self-help in making deductions from her salary.

Brief factual background

[2] In March 2019, the applicant member, Brigadier Mqoni, applied for a cash bonus after having obtained a postgraduate diploma in public administration. Her application was considered and approved by the first respondent. In October 2019, she received a cash bonus payment in the amount of R17 682. 84.

[3] On 11 March 2024, Brigadier Mqoni received a letter from the first respondent indicating that she did not qualify to be paid the cash bonus and that the first respondent intended to recover the cash bonus paid to her. She was afforded an opportunity to submit representations against the recovery of the cash bonus.

[4] On 19 March 2024, she provided her representations in opposition to the intended recovery and indicated that she was not aware that she was not entitled to claim the cash bonus and that such application was bona fide. She refused to provide consent for the recovery of the cash bonus and inter alia, she claimed that the first respondent’s claim had prescribed.

[5] On 19 April 2024, the first respondent stated that it was awaiting a legal opinion from its legal services division on its intention to litigate in matters where debtors who were liable in law refused to repay the debts due.

[6] Pursuant to further communication between the parties relating to a debt account being created in relation to the deductions, on 28 May 2024, Brigadier Mqoni was informed that 13 instalments would be made from her salary.

[7] On 6 June 2024, Brigadier Mqoni discovered that the first respondent deducted an amount of of R2 614.95 from her salary.

Urgency

[8] The now repealed Rule 8 of the Rules of this Court[1] provided as follows in relation to urgent relief:

‘(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(2) The affidavit in support of the application must also contain –

(a) the reasons for urgency and why urgent relief is necessary;

(b) the reasons why the requirements of the rules were not complied with, if that is the case …’

[9] In Soobedar and another v Minister of International Relations and Cooperation and Another[2], this Court restated the principles relating to urgent applications and held as follows:

‘The principles applicable to urgency are trite as can be gleaned from various decisions of this and other courts. 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 render the matter urgent, and the reason why substantial relief cannot be attained at a hearing in due course.’ [Emphasis added]

[10] In addition, this Court held as follows in Vermaak v Taung Local Municipality:[3]

‘The consideration of the first requirement being why is the relief necessary today and not tomorrow, requires a court to be placed in a position where the court must appreciate that if it does not issue a relief as a matter of urgency, something is likely to happen. By way of an example if the court were not to issue an injunction, some unlawful act is likely to happen at a particular stage and at a particular date.’

[11] The applicant avers that the deductions from her salary offend against the rule of law, infringe on her right to fair labour practice as enshrined in section 23 of the Constitution[4] and are ongoing in view of the first respondent’s intention to deduct monies from her salary in instalments over 13 months despite her refusing to consent to such deductions.

[12] I am satisfied that the applicant has made out a case for urgency, as the harm she complains of is ongoing. She has approached this Court for relief without delay and has demonstrated that should an injunction not be granted on an urgent basis, the harm will continue and she will not obtain substantial relief if the matter is heard in the ordinary course.

Argument and analysis

[13] The applicant contains that it has satisfied the requirements for final interdictory relief.

[14] Relying on the provisions of section 34 (1) of the Basic Conditions of Employment Act[5] (BCEA), which read as follows:

‘(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’,

the applicant avers that absent any consent by Brigadier Mqoni to the deductions, absent any collective agreement, law or Court order, the first respondent is not entitled to deduct any amount from her salary and therefore, the applicant has a clear right to the relief sought.

[15] The applicant has not, as stated above, consented to any deduction from her salary.[6] There exists is no collective agreement, arbitration award or Court order permitting or ordering any deduction from her salary.

[16] The applicant alleges that the unlawful conduct by the respondents in continuing to deduct the repayments from her salary is an affront to the rule of law. The applicant further contends that there is no alternative remedy but to approach this Court for the relief that she seeks.

[17] In Northwest Provincial Legislature and another v National Education Health and Allied Workers Union obo 158 Members[7], the Labour Appeal Court (LAC) upheld the order by this Court which interdicted and restrained the employer from deducting any remuneration from the salaries of the members of the union until it had complied with the provisions of section 34 of the BCEA. The LAC stated the following in respect of the union members’ rights and obligations which would be violated were such deductions permitted:

‘Having paid such remuneration, it mattered not that payment was made during the course of a strike. It remained remuneration paid to employees and the right to fair labour practices, to which the BCEA gives effect, requires that deductions from remuneration are governed by section 34. In doing so, effect is given not only to the constitutional fair labour practice right but also the country’s international obligation to adhere to the ILO’s Protection of Wages Convention and notions of fairness and justice that inform public policy and ensure that account is taken of the necessity to do simple justice between individuals. No conflict exists between the provisions of the LRA and BCEA, when regard is had to the language used in each statute, the context in which it is used, and the purposes of the provisions. To find differently, would be to permit self-help in a manner expressly rejected by the Constitutional Court in Public Servants Association on behalf of Ubogu v Head of the Department of Health, Gauteng and Others[8] (“Ubogo”) and in Chief Lesapo v North West Agricultural Bank and Another,[9] it was made clear that taking the law into one's own hands is inconsistent with the fundamental principles of our law.’

[18] In opposition, the respondents contend that no consent is required from an employee where such deductions are made in terms of the provisions of section 34 (5)(a) of the BCEA, which reads thus:

‘An employer may not require or permit an employee to –

(a) repay any remuneration except for overpayments previously made by the employer resulting from an error in calculating the employee's remuneration...’

[19] In my view, the respondents’ reliance on section 34(5) of the BCEA for the deduction of the cash bonus paid over to Brigadier Mqoni undermines the clear pronouncement by the Constitutional Court against self-help and offending the rule of law.

[20] In Gqithekhaya and Others v Amathole District Municipality[10], the Court held as follows relating to deductions in terms of section 34(5) of the BCEA:

‘As for the several cases documented by the full court on the subject of the practical application of the provisions of section 34(5) of the BCEA, their impact seems to have been neutralised by the observations made by the Constitutional Court in PSA obo Ubogu, even if made obiter. Indeed, it would be counter-intuitive to promote arbitrary deductions where the Constitutional court has held up the provisions of section 34 of the BCEA as a mechanism that does not permit arbitrary deductions but instead requires that due respect be given to an employee’s constitutional rights to fair labour practices, of access to court, and the right not to be arbitrarily deprived of their property.’

[21] In addition, the reliance by the respondents on section 34(5) of the BCEA does not assist them as the cash bonus was not a result of an error in calculating Brigadier Mqoni’s remuneration. It is not disputed that Brigadier Mqoni was not entitled to the cash bonus, thus the amount paid over to her is not remuneration as defined in section 1 of the BCEA.[11]

Costs

[22] The Constitutional Court in Public Servants Association on behalf of Ubogu v Head of the Department of Health, Gauteng and Others[12] (Ubogu) has unequivocally pronounced that resorting to self-help offends against the rule of law and deprives a party of its right to access to justice and to have its dispute publicly adjudicated in a Court of law as provided in section 34 of the Constitution.

[23] In Ubogo, although obiter, the Constitutional Court pronounced that “section 34(5) read with section 34(1) of the BCEA does not authorise arbitrary deductions”.[13]

[24] The first respondent is an organ of state. The respondents have a duty to uphold and respect the Constitution. This could not have been stated more clearly than it was in the case of Member of the Executive Council for Health, Eastern Cape v Kirkland Investments (Pty) Ltd t/a Eye & Lazer Institute[14] (Kirkland) when the Constitutional Court stated as follows:

‘… there is a higher duty on the state to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights. Government is not an indigent or bewildered litigant, adrift on a sea of litigious uncertainty, to whom the courts must extend a procedure-circumventing lifeline. It is the Constitution's primary agent. It must do right, and it must do it properly.’

[25] In the present case, the respondents ignored the clear warning by the Constitutional Court not to resort to self-help. The deductions of instalments arbitrarily determined by the respondents from the salary of the applicant without observing the principle of audi alteram partem is precisely what the Constitutional Court in Ubogu states offends the rule of law and goes on to state that section 34(5) of the BCEA on which the respondents rely to make the deductions, does not authorise arbitrary deductions. Yet, the respondents saw it fit to oppose this application and did so out of time, having delivered a notice to oppose late and their answering affidavit late with no explanation for the delay. In my view, taking into account the exigencies of the circumstances, the respondents were provided with sufficient time to oppose the application, but only did so at the eleventh hour and as I have said, without any explanation. The applicant alleges that this has prejudiced it,

without explaining how it has been so prejudiced. I say this in the circumstances of no replying affidavit having been delivered and no allowance made in the notice of motion for the filing of a replying affidavit. In any event, I reiterate that in light of the decision on Ubogu, the opposition is unmeritorious.

[26] The applicant does not on the papers before this Court dispute that she was not entitled to the cash bonus – she asserts that she would not have applied for it had she known that senior employees were not eligible to receive it. I have considered that the respondents have a duty to recover undue public funds paid over. However, to echo the words of the Constitutional Court in Kirkland, they are to do so properly and in so doing, uphold the Constitution. They have not done so. Mindful that any order as to the payment of costs would be on the back of taxpayers, I exercise my discretion not to make an order as to the payment of costs.

Order

1. The application is heard as urgent.

2. The respondents are interdicted and restrained from unilaterally effecting deductions from the salary of Brigadier D. C Mqoni until there is compliance with the provisions of section 34 of the Basic Conditions of Employment Act 75 of 1997.

3. The respondents are to repay all deductions from the salary of Brigadier D.C Mqoni that commenced on 6 June 2024 within 30 days of this order.

4. There is no order as to costs.

M. T. M. Phehane

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv. DJ Groenewald Instructed by: Serfontein, Viljoen & Swart Attorneys For the respondents: Adv. Z Williams (Ms.) Instructed by: State Attorney, Mahikeng

[1] Rules for the Conduct of Proceedings in the Labour Court, as promulgated in GN 1665 in GG 17495 of 14October 1996(repealed but in operation when this application was heard).

[2] (2021) 42 ILJ 1761 (LC) at para [19].

[3] (JR315/13) [2013] ZALCJHB 43 (12 March 2013) at para [12].

[4] Constitution of the Republic of South Africa, 1996.

[5] Act 75 of 1997.

[6] The reason for refusing to provide such consent is gleaned from Brigadier Mqoni’s written representations where she places the blame for the approval of her application and the payment of the cash bonus squarely on the personnel who processed an approved the payment. In her view, they are liable for the recovery of the cash bonus that was paid over to her. See: p 49.

[7] [2023] ZALAC 12; [2023] 8 BLLR 745 (LAC) at para [15].

[8] [2017] ZACC 45; 2018 (2) BCLR 184 (CC).

[9] [1999] ZACC 16; 2000 (1) SA 409 (CC).

[10] [2022] ZAECELLC 20; [2022] 4 All SA 106 (ECLD) at para [50].

[11] Section 1 of the BCEA defines remuneration as: ‘…any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State.’

[11] Section 1 of the BCEA defines remuneration as:

‘…any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State.’

[12] Supra fn 8.

[13] Ibid at para [78].

[14] [2014] ZACC 6; 2014 (5) BCLR 547 (CC) at para [82].