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[2011] ZAGPPHC 194
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Trans Man (Pty) Ltd v South African Post Office Ltd and Another (32773/2004, 27531/2008) [2011] ZAGPPHC 194 (14 September 2011)
NOT REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
DATE:14-09-2011
CASE
NO: 32773/2004 - 27531/2008
In the matter between:
TRANS MAN (PTY)
LIMITED
...............................................................
APPLICANT/PLAINTIFF
And
SOUTH AFRICAN POST OFFICE
LIMITED
.........................
1
st
RESPONDENT/DEFENDANT
AUTENMAS PLACEMENTS
CC
.........................................
2
nd
RESPONDENT/DEFENDANT
JUDGMENT
MAKGOBA. J
[1]
The applicant/plaintiff is a labour broker. At all material times
hereto the first respondent/defendant required the services
of a
considerable number of temporary employees throughout the country. It
made use of various labour brokers, including the
applicant/plaintiff.
On
31 March 2000 the parties entered into a written agreement titled:
Temporary Assignments and Permanent Appointments Services
Contract.
That agreement was for a fixed period from 1 April 2000 until 31
March 2002. Upon the expiry of the agreement same was
extended and
operated on month to month basis until the agreement was terminated
on 31 March 2005.
[2]
In terms of the aforesaid agreement the employees' salaries had to be
determined in terms of clause 3.8.1 of the agreement with
reference
to the hourly remuneration of permanent employees of the first
respondent/defendant for similar work to which had to
be added
certain benefits in terms of the BCEA ("The Basic Conditions of
Employment Act").
[3] It is appropriate at
this stage to set out the provisions of clause 3.8.1 of the agreement
as much turns around the interpretation
thereof in this case:
"3.8.1
It is hereby accepted
by the P.O. that should TES have performed its mandate to locate
staff member(s) / candidate(s) to be appointed
by P.O, then the P.O
shall pay TES a fee per staff member per hour. The amount referred to
is arrived at by means of calculating
the hourly
rate of an employee in
the permanent employment of the P.O who is performing a similar
task/job/service. In addition to the hourly
rate an allowance for
benefits as prescribed by the BCEA will be made
."
In
the above quoted clause "P.O" refers to the Post Office
being the first respondent/defendant herein and "TES"
refers to the applicant/plaintiff.
[4]
For the sake of convenience in this judgment I shall refer to the
applicant/plaintiff as "TRANSMAN" and the first
respondent/defendant as "SAPO" (South African Post Office).
[5]
The bone of contention in this matter is whether or not "TRANSMAN"
was contractually entitled to further payments
over and above the
payments that it received on submission of its invoices.
[6]
When this matter came to trial previously before my brother LEDWABA J
on 20 April 2010, the merits of the dispute were conceded
and a
declaratory order was issued on the following terms:
6.1
It is declared that:
6.1.1
In terms of the original agreement (as defined in paragraph 3.1 of
the declaration under case number 32773/04) and the agreement
(as
defined in paragraph 3.11 of the said declaration) the first
defendant is obliged (subject to the issues referred to in paragraphs
3.1 and 3.2 below) for the period 1 April 2000 until 31 March 2005
to:
6.1.1.1
Pay to the plaintiff for each temporary employee placed by the
plaintiff with the first defendant an amount representing
the total
of:
6.1.1.1.1
The hourly rates of a permanent employee employed by the first
defendant in a similar task/job/service (subject to such
adjustments
as are provided for in the agreement; and
6.1.1.1.2
An allowance for benefits prescribed by the
Basic Conditions of
Employment Act 75 of 1997
;
6.2
The calculation of the amount to be paid in accordance with paragraph
1.1 is to be calculated by agreement between the parties
within 40
court days of the granting of this order, failing which the parties
are to refer the matter to arbitration if agreed
to by the parties
within 5 court days of the lapsing of the aforementioned period,
failing which the calculation of the amount
to be paid (including the
issues referred to in paragraphs 3.1 and 3.2 below) shall be
determined by this court at a date and time
to be arranged with the
registrar of this court;
6.3
The calculation shall be subject to:
6.3.1
such claims as may be proved by the first defendant or agreed to by
the parties to have become prescribed;
6.3.2
the question of whether increases in rates/fees are limited in terms
of clause 5.8.3 of the original agreement and the agreement
(as
defined);
6.4
The first defendant shall be obliged to make payment to the plaintiff
of such amount as calculated in terms of clause 1, 2 and
3 above,
within five days of such amount being determined, together with
interest thereon calculated at the prescribed rate of
15.5% per annum
from 9 December 2004 to date of payment.
6.5
The first defendant is to pay the costs of the trial to date
(excluding quantum but including the reserved costs of the
interlocutory
application set down on 19 April 2010) including the
costs of two counsel.
6.6 The balance of the
costs are reserved.
[7]
This court is required to determine the amount due by "SAPO"
to "TRANSMAN" pursuant to this order of court
of 20 April
2010. This order is based upon the provisions of clause 3.8.1 of the
agreement as stated in [3] above. The portion
of the order that gives
rise to a dispute as to its meaning and interpretation is that
contained in paragraph 1.1.1.2 in terms
of which SAPO is to pay
TRANSMAN:
"an
allowance for benefits prescribed by the
Basic Conditions of
Employment Act 75 of 1997
."
[8]
SAPO has raised two main defences:
Firstly
, that part
of the monies claimed by TRANSMAN relates to rates applicable in
terms of a bargaining council determination or collective
agreement
of the NBCRFI ("The National Bargaining Council for the Road
Freight Industry") to which SAPO is not bound.
Their
interpretation of clause 3.8.1 of the agreement means only the
benefits as prescribed by the BCEA and not the BCEA as amended
or
varied by an applicable collective agreement such as the one under
the NBCRFI.
Secondly
,
that the greatest portion of the original claims has become
prescribed
[9] TRANSMAN's case is
that the interpretation of clause 3.8.1 of the agreement should be
such that it would mean that benefits
as prescribed by the BCEA would
include such benefits as amended or varied by an applicable
collective agreement such as the one
under the NBCRFI. In this regard
reliance is based on
section 49
and
50
of
the BCEA.
On
the issue of prescription raised by SAPO, TRANSMAN relies on its
inability to quantify its claim as a result of SAPO's failure
to
supply the necessary information to it until it was so ordered by
court during May 2005.
[10] The interpretation
of clause 3.8.1 of the parties' written agreement should not be seen
in isolation. Other clauses and in
fact the whole agreement must be
looked into. It is against this background that I refer to the
undermentioned clauses of the same
agreement:
Clause
3.8.2:
"[Transman]
undertakes to pay its staff members a fair and reasonable
remuneration as laid down by the law."
Clause 3.11.1:
"All and any leave
by staff members of [Transman] shall be taken at [Transman's] sole
expense without any expenses being attributed
to the P. O at all."
Clause 3.11.5:
"Sick leave shall be
granted in terms of
section 22
of the
Basic Conditions of Employment
Act... as
unpaid sick leave as far as the P.O is concerned and paid
sick leave as far as [Transman] is concerned. "
Clause
3.14.1:
"[Transman]
acknowledges that in view of the nature of the relationship between
the parties, no one of [Transman] staff shall
become a member of the
P.O's provident/pension fund or medical aid scheme, and shall not be
entitled to any other service or fringe
benefits applicable to
permanent employees "
Clause
3.14.3:
"The staff members
of [Transman] shall not be entitled to any severance pay or notice
pay upon termination of the contract
by the P. O for whatever
reason."
Clause
5.1:
"This constitutes
the entire contract between the parties and no variance thereof shall
be binding unless reduced to writing
and signed by both parties."
Clause 5.8.3:
"... All rates/fees
for temporary assignments will be subject to adjustment yearly not to
exceed the consumer price index."
[11]
What was agreed to in clause 3.8.1 of the agreement was that SAPO
would pay TRANSMAN the same hourly rates for its permanent
employees
doing similar work and in addition "an allowance for BCEA
benefits". The clause is vague to an extent that
it does not
state or indicate what allowances is to be made for BCEA benefits.
The evidence of Mr Kevin Cowley, who testified for
Transman, can be
of assistance in this regard. He confirmed that this cannot be
regarded as necessarily requiring the client (SAPO
in this case) to
pay the labour broker 100% of all benefits that may be payable to a
particular employee under the BCEA. According
to Mr Cowley it is up
to agreement being reached between the parties as to whether and on
what basis the client is to pay for such
benefits.
[12]
I pause to state that I have already made mention of other clauses in
the agreement (see [10] above). Some of the clauses mentioned
above
establish an agreement between the parties with regard to some of the
benefits prescribed by the BCEA.
Mr
Cowley confirmed further that it would be up to the parties on
whether the client would pay for example 100% or 50% or nothing
for a
particular benefit. In this case clauses 3.11.1, 3.11.4 and 3.11.5 of
the agreement exclude payment of some BCEA benefits
in the form of
"any leave", "vacation leave" and "sick
leave" respectively. Same is applicable with
regard to clause
3.14.1 (fringe benefits) and to clause 3.14.3 regarding severance
pay.
In
my view it cannot simply be assumed that 100% of the benefits payable
by TRANSMAN to its employees would now be payable by SAPO.
[13]
The parties have in their written agreement specifically stated what
they agreed upon. They specifically put clauses in their
agreement as
to which of the BCEA benefits are excluded. This is the agreement
between the parties and should be taken as such.
A court may not make
an agreement for the parties by implying other terms. See Press v
Jofwall Investments (Pty) Ltd
1981 1 SA 261
at 265E and the
authorities referred to thereunder.
[14]
Even if counsel for the plaintiff (TRANSMAN) wanted to persuade me to
find that the true intention of the parties underlying
the last
sentence of clause 3.8.1 was that there would be full compensation by
SAPO to TRANSMAN for all BCEA benefits, there are
the following
hurdles which Transman has to overcome:
14.1 That a number of
other clauses in the agreement as mentioned in [10] above, make it
clear that the parties intended that various
BCEA benefits would not
be paid for by SAPO and that Transman alone would be responsible for
these.
14.2 That some of the
benefits do not arise in all circumstances and the manner in which
Transman is claiming for this benefits
involves unilateral
determination by Transman of what it claims. This is not in
compliance with what was agreed to or what is provided
for in the
BCEA.
[15]
In my view the written agreement makes it clear that liability for
payment to the temporary employees in respect of various
forms of
leave entitlement rests with TRANSMAN alone and SAPO is not liable to
TRANSMAN for any form of payment in this regard.
I have already
alluded to clauses 3.11.1, 3.11.4 and 3.15.5 in this regard.
[16] To be more specific,
Transman is therefore precluded from claiming form SAPO any amount in
respect of vacation leave, sick
leave, family responsibility leave or
any other form of leave.
[17] As pointed out
earlier TRANSMAN wishes to interpret clause 3.8.1 of the agreement in
such a manner that the phrase "benefits
prescribed by the BCEA"
would include the benefits as prescribed by the Bargaining Council
for the Road Freight Industry (NBCRFI).
[18]
Some of the temporary employees provided by Transman to SAPO are
covered by the NBCRFI and others are not covered by that Bargaining
Council. SAPO itself is not covered by the NBCRFI, its constitution
or the collective agreements which prescribe minimum wages
and other
terms of employment. SAPO itself and its permanent employees are
covered by another Bargaining Council which has been
established
specifically for the SAPO. The provisions of the latter Bargaining
Council do not cover temporary employees provided
by labour brokers
such as Transman.
[19]
In some cases the NBCRFI's collective agreements provide for benefits
which are not payable under the BCEA at all, for example
provisions
for an annual bonus, study leave, provident fund benefits,
subsistence allowance and night shift allowance. Other benefits
such
as entitlement to annual leave, sick leave and family responsibility
leave which are the type covered by the BCEA are granted
more
generous rates under the NBCRFI collective agreements.
[20]
The fundamental question in this case is whether there can be any
claim for NBCRFI benefits in addition to those prescribed
under the
BCEA.
Clause 3.8.1 of the
agreement specifically allows only "an allowance for benefits as
prescribed by the BCEA". There is
no specific reference in the
contract to any allowance having to be made for benefits in excess of
the BCEA benefits such as those
under the more generous provisions of
the NBCRFI collective agreements. In any event there are specific
clauses in the contract
as set out in [10] above that specifically
exclude liability for payment by SAPO.
[21] The basis on which
Transman sought payment of the benefits as prescribed by the NBCRFI
collective agreement is its reliance
on
sections 49
and
50
of the
BCEA.
I
agree with Mr Kennedy SC, counsel for SAPO that this reliance on
section 49
and
50
is misplaced and legally unsustainable. According
to Mr Kennedy all that
sections 49
and
50
of the BCEA envisage is
that the parties can, either on an ad hoc basis or thorough
collective agreement, effectively contract
out of the BCEA benefits
by providing more generous benefits. That there is no provision to
the effect that a benefit under the
more generous provisions of a
collective agreement concluded in a bargaining council are now to be
deemed to be benefits under
the BCEA. I agree.
[22]
On a simple and proper interpretation of clause 3.8.1 of the contract
and
sections 49
and
50
of the BCEA I make a finding that the benefits
payable under the Bargaining Council collective agreements cannot be
regarded as
"benefits prescribed by the BCEA". They remain
benefits prescribed by the Bargaining Council agreements - not the
BCEA.
Accordingly they cannot be claimed under clause 3.8.1 of the
contract.
[23]
Transman's claim schedule includes a specific item abbreviated as
"LNR". The item is referred to as "Legitimate
Expectation of Continued Employment/ Notice/Retrenchment/Legal costs/
Industrial Action/CCMA/ Interdicts". The schedule claims
for
each and every worker an allowance for payment of ten days or 84
hours per annum for this item SAPO contends, as part of its
objections, that "LNR" is not a benefit payable to SAPO's
permanent employees and therefore should not be an allowance.
TRANSMAN conceded to this contention and as such I shall not take
this issue any further.
[24] Furthermore
TRANSMAN's schedules claim payment for three compensation funds,
namely the Unemployment Insurance Fund, the Skills
Development Levies
and the Workmen's Compensation Commissioner. These are all charges
paid to those statutory funds and they do
not represent benefits
under the BCEA.
TRANSMAN
concedes. Again this issue will not be taken any further.
[25]
TRANSMAN has sought to charge SAPO on the basis that charges escalate
in accordance with changes in the SAPO's standard rates
of pay for
its permanent employees without regard for clause 5.8.3 of the
contract.
The
clause states that:
"... All rates/fees
for temporary assignments will be subject to adjustment yearly not to
exceed the consumer price index."
This
clause is crystal clear and simply means that the increase in hourly
rates payable to Transman should be limited to the percentage
increase in the CPI.
To
the extent that Transman did not comply with the provisions of clause
5.8.3 of the contract it will be ordered that Transman's
increases be
adjusted accordingly.
[26]
I now turn to the issue of prescription.
Transman launched these
legal proceedings on 9 December 2004. SAPO contends that prescription
must operate to exclude from Transman's
claims amounts reflected in
invoices delivered prior to 9 November 2001.
Transman
contends that none of the amounts it claims has prescribed because it
did not have the knowledge of the extent of its claim
or the amounts
because SAPO did not supply it with the hourly rates paid to the
SAPO's own employees until ordered to do so by
the court. There is
merit in Transman's contention.
[27]
Section 12
of the
Prescription Act 68 of 1969
provides:
"12(1) Subject to
the provisions of subsections (2) (3), (4) prescription will commence
to run as soon as the debt is due.
(2) ...
(3) a debt shall not be
deemed to be due until the creditor has knowledge of the identity of
the debtor and of the facts from which
the debt arises: provided that
a creditor shall be deemed to have such knowledge if he could have
acquired it by exercising reasonable
care."
The party raising
prescription must allege and prove the date on which the creditor
acquired knowledge of the debtor's identity
and the date on which the
creditor acquired knowledge of the facts from which the debt arose.
The defendant may, in the alternative,
allege and prove the date on
which the creditor could, with the exercise of reasonable care, have
acquired the relevant knowledge
- See: Gericke v Sack
1978 (1) SA 821
(A).
[28]
In casu, SAPO has failed to allege these facts. Accordingly SAPO must
show on the evidence when Transman learned or is deemed
to have
learned of the facts form which the debt arises. The deeming
provision only kicks in if SAPO can demonstrate that Transman
by
exercising reasonable care could have known of the date sooner.
[29]
In this case it is common cause that the application in which
Transman claimed the debt was served on SAPO on 9 December 2004.
Accordingly if prescription is to be applied, it is only to invoices
of the date older than 9 November 2001.
In
order to make a claim Transman needed to know what hourly rate of an
employee in the permanent employment of SAPO who was performing
a
similar task/job/service was. In the application served on 9 December
2004 Transman sought and obtained an order that SAPO "deliver
forthwith details of the remuneration paid to the categories of
permanent employees in the respondent's employ set out in schedule
"A" for the period April 2000 to date hereof".
The
judgment was granted in favour of Transman on 19 May 2005. Despite
the court order Transman was only given the rates of the
various
employees approximately a year after having brought the application.
[30]
SAPO did not lead any evidence on the prescription issue. It has also
not pleaded when Transman could reasonably have acquired
the
necessary knowledge.
In
the circumstances the defendant of prescription cannot succeed.
[31]
The final issue raised by SAPO concerns interest.
Transman claims interest
at the prescribed interest rate of 15.5% a tempore morae to date of
payment. SAPO argued that account must
be taken of the in duplum rule
- which precludes charging interest in a total amount which exceeds
the capital.
The
argument raised by SAPO in this regard is unsustainable in the light
of the authoritative argument presented by counsel for
Transman, Mr
Van Blerk SC. With reference to the Supreme Court of Appeal decided
cases counsel submitted that the in duplum rule
does not apply
because the in duplum rule is suspended pendent lite, and that the
lis is said to commence upon service of the initial
process,
whereafter interest runs again. Interest is only sought from service
of the proceedings and does not apply -
See:
Standard Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd
(In Liquidation)
1998 1 SA 811
(SCA) 828A-D;
Commissioner, South
Africa Revenue Service v Wouligde
2002 1 SA 68
(SCA) para [12]; and
Nedbank Ltd and Others v National Credit Regulator and Another
2011 3
SA 581
(SCA) para [37]
Transman
is accordingly entitled to charge interest at the prescribed rate of
15.5% a tempore morae.
[32]
The following orders are granted:
32.1 The plaintiff
(Transman) is entitled to payment from the first defendant (SAPO) for
each temporary employee placed by the plaintiff
with the first
defendant of an amount representing the
total of:
32.1.1 the hourly rate of
a permanent employee employed by the first defendant in a similar
task/job/service as agreed by the parties;
and
32.1.2an allowance for
benefits prescribed by the
Basic Conditions of Employment Act 75 of
1997
which is to be calculated by
excluding
32.1.2.1 any amounts as
prescribed by collective
agreements of the National
Bargaining
Council of the Road Freight Industry
(NBCRFI);
32.1.2.2 a claim for
annual leave sick leave, family responsibility leave, items referred
to by Transman in its schedules as "LNR"
being amounts
claimed for "legitimate expectation of continued employment/
notice/ retrenchment/ legal costs/ industrial action/
CCMA/
interdicts" public holidays and night shifts.
32.1.2.3
any amounts for levies payable by it to statutory funds such as
Unemployment Insurance Fund, Skills Development Levies
and funds for
the Workmen's Compensation Commissioner.
32.2 No amount may be
claimed by plaintiff as an allowance for BCEA benefits in the absence
of agreement being reached between the
parties as to what such
allowance should be.
32.3
The plaintiff's claim for payment of amounts in respect of wages and
overtime, ordinarily calculated as being equivalent to
the rates paid
by the first defendant to its own employees doing similar work, shall
be adjusted to limit any increases to a maximum
equivalent to the
increase in the Consumer Price Index for the year in question.
32.4
No claims have been proved by the first defendant or agreed by the
parties to have become prescribed;
32.5
The plaintiff is entitled to charge interest at the prescribed rate
of 15.5% a tempore morae;
32.6
Within ten days of the grant of this order the parties are to advise
the court as to whether they have agreed in the computation
of the
figure due by the first defendant to the plaintiff taking the above
order into account, alternatively and if they have not
agreed, the
parties are to make any written submissions they may be advised to
make for purposes of ruling on the amount due.
32.7
The first defendant is to pay the plaintiff's costs including the
costs of two counsel but excluding the costs of experts.
E
M MAKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on
:
..................................
25,
26 & 30 August & 5 September 2011
For
the Appiicant/Piaintiff
:
.......
Adv
P J Van Blerk SC & A C Botha
instructed
by
:
.............................
Sim
& Botsi incc/o R E ivlegaw Attorneys,
…
...............................................
Pretoria
For
the Respondent/Defendant
:. Adv P Kennedy SC
Instructed
by
:
...............................
Maserumuie
Inc c/o Ledwaba Mazwai
…
................................................
Attorneys,
Pretoria
Date
of Judgment
:
......................
14
September 2011