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[2022] ZAECMHC 49
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King Sabata Dalindyebo Municipality Employess - Access Control Officers v King Sabata Dalindyebo Municipality (CA 14/2022) [2022] ZAECMHC 49 (13 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – MTHATHA
NOT REPORATBLE
Case
No: CA 14/2022
In
the matter between:
KING
SABATA DALINDYEBO MUNICIPALITY
EMPLOYEES
(K.S.D) – ACCESS CONTROL OFFICERS
Appellant
and
KING
SABATA DALINDYEBO LOCAL MUNICIPALITY (K.S.D)
Respondent
JUDGMENT
MAKAULA
J:
A.
Background
:
[1] This
appeal is against the judgment of the court
a quo
which
dismissed an application brought by the appellants for a declaratory
order that the failure by the respondent to account
and pay the
appellants for overtime worked during the period December 2014 to May
2015 was unlawful. The appellants further sought
an order compelling
the respondent to furnish them with the written account relating to
the overtime worked during the same period
and the applicable
overtime rate. The appeal is with the leave of the court
a
quo.
B.
Appellants’
case
:
[2] The
appellants describe themselves as the King Sabata Dalindyebo
Municipality Employees –
Access Control Officers and employees
of the respondent. Their relationship is governed by contracts
of employment which,
I presume, have similar provisions. The
relevant clauses are 14 and 16 which provide:
“
The Municipality
could expect and you would be obliged to work overtime as dictated by
work exigencies and/or as required by the
Municipality subject to the
Municipality’s policies on overtime. Stand-by Night work,
Sunday work and Public Holiday
work allowances are payable at a rate
prescribed by council to employees who ordinarily work night shifts,
or who work ordinarily
on Sundays or Public Holidays and or whose
duties require that they be on standby”.
[3] During
the period December 2014 to May 2015, the appellants state that they
were requested
by the respondent to work overtime. They worked
the required hours stipulated in the respondent’s policy which
terms
are consistent with their respective agreements.
Thereafter, the appellants submitted their claims from time to time.
The respondent failed to pay them after numerous requests from the
appellant’s representatives. The response was that
the
respondent had no money to pay for the overtime worked.
However, after some time the appellants were uniformily paid
an
amount of R12 000.00 each with a concomitant deduction of
R6000.00. No breakdown was given of the amount paid and
for the
deduction despite numerous enquiries.
[4] The
appellants allege that they incessantly visited the officials of the
respondent,
including the Human Resources Department for clarity,
accountability and transparency on the amount each employee was
entitled
to for the overtime worked and needed an explanation about
the R6000.00 deduction. The contention by the appellants is that the
respondent had not only failed to fully pay them but also failed to
account to them.
[5] The
appellant’s pinned their application on the provisions of
sections 10, 32
32(3)(a), 33(1)(g) and 35 of the Basic Conditions of
the Employment Act 75 of 1997 (BCEA) and section 195 of the
Constitution of
the Republic of South Africa 106 of 1996 (the
Constitution).
C.
The
respondent’s case
:
[6] The
respondent contends that the appellants have been fully paid (as per
their salary
slips) what was due in terms of the overtime worked and
has accounted on how the calculation was made. Furthermore, the
contention
is that Mrs Nwabisa Qhayiso – Giwu, the Manager
Expenditure, explained fully to the appellants’ representatives
how
the calculation was made and the rate applicable. The
respondent argues that if the appellants sought the respondent to
furnish
them with the written information relating to the overtime
worked, they should have followed the procedures prescribed by the
Promotion
of Access to Information Act 2 of 2002 (PAIA) and were so
advised by Mrs Qhayiso - Giwu. Furthermore, the respondent
argues
that the appellants failed to exhaust the internal remedies
within the respondent’s establishment in terms of the Municipal
Systems Act 32 of 2002 the provisions of which allow the Municipal
Council to overturn a decision by the Municipal Manager.
In
essence, the respondents do not dispute that the appellants are
entitled to the calculation and the abatement of their overtime
account.
D.
The issue
:
[7] The
issue as crystallised in the founding and replying affidavit is that
the appellants
seek the respondent to account to them and if there is
money due, then in that event, it be paid to the appellants
[1]
.
[8] It
is necessary to emphasise the long established principle that a
litigant stands or fails
by the case presented in the application
papers. A claim that is before court is a matter of fact.
Once a claim of
a particular nature is presented in the papers then
the court must deal with it accordingly. It is not open to the
opponent
nor the court to disregard the claim asserted in the papers
and deal or decide the matter on a different basis. It is wrong
to engage in ‘
an
alchemical process’
that
purports to convert the claim asserted into a claim of another
kind
[2]
.
E.
Analysis
:
[9] The
cause of action asserted by the appellant is based on contract as
stated in paragraph
2 above. The appellants required the
respondent to account and debate to them. The object of a claim
for an account
and debate is to enable the appellants to establish
the indebtness of the respondent to them. The application is
for the
delivery of an account, a debate, and payment of the amount
found to be due, if any. A final order cannot issue before,
debatement
[3]
. Harms JA in
Doyle
and Another vs Fleet Motors P.E. (Pty) Ltd
[4]
formulated the following allegations that the plaintiff must prove in
order to establish his right to accounting and debatement.
“
(a)
his right to receive an account, and the basis of such right, whether
by contract or by fiduciary relationship
or otherwise;
(b)
any contractual terms or circumstances having a bearing on the amount
sought; and
(c)
defendant’s failure to render an account”.
[10] The
appellants pertinently raised the allegation that the respondent has
failed to render an account
to them after there had been requests
both verbally and in writing. In the relevant parts the letter
dated 26 March 2020
written by the appellants read:
“
The municipality
has always been promising to calculate, account and pay our clients
for the overtime they have worked. We place
on record that you do not
only have a statutory duty to furnish that b(sic) written information
but also a contractual duty to
do so”.
[11] This
fact has not been gainsaid by the respondent. Instead it,
through Mrs Qhayiso –
Giwu, the respondent advised the
appellants to launch review proceedings either in terms PAIA or Rule
53 of the Uniform Rules of
Court.
[12] Reliance
on PAIA by the respondent as an instrument to get the information is
misplaced.
I further, do not, for the purposes hereof venture
into the provisions of the BCEA and the Constitution referred to by
the appellants
for the reason that the ratio of the court
a quo
does not hinge on them. Furthermore, their cause of action
is premised on a contract.
[13] The
court
a
quo
relied in its reasoning on the provisions of section 9 and 86(2) of
the PAIA
[5]
. The court
a
quo
further found that “the appellants had been asked to meet a
simple requirement, to have the request reduced into writing.
I
found no justification for them to start with court proceedings, in
those circumstances, even on the bases of BCEA”.
[14] With
respect what the court
a
quo
eventually
found to be the reason for the dismissal of the application, does not
find application in PAIA. The cause of action
has been
succinctly dealt with by the appellants as state above. All the
appellants had to allege and prove is the basis
of their entitlement
to receive an account and that the respondent has failed to render a
proper account and debatement to their
request
[6]
.
The appellants have satisfied those requirements,
[15] In
casu,
based on the contract between the parties, the
respondent is obliged in law to furnish the appellants with a proper
account on how
the overtime was calculated and the debatement of that
account. As aforesaid, the appellants pertinently referred to
clauses
14 and 16 of the contracts between them. The
respondents therefore have a contractual obligation to render an
account to
the appellants regarding how the amount of R12 000.00
has been calculated and debated especially that an amount of R6000.00
was universally deducted from all the appellants. On that
basis, the appeal stands to be upheld.
[16] Regarding
costs, there is no reason why the costs should not follow the result.
[17] Consequently,
the following order shall issue.
“
The order of the
court
a quo
is set aside and substituted with the following
order:
1. The
respondent is ordered to render to the applicant within 60 calendar
days from
the date of this judgment a true and proper statement of
account together with substantiating documents reflecting the correct
calculation and the rate applicable in its calculation of the
overtime worked.
2. The
respondent is ordered to debate the account with the applicants or
their representatives
within 10 court days from the date it was
rendered in terms of paragraph 1 above.
3. The
respondents are ordered to pay the costs of the application and the
costs
of appeal.
M
MAKAULA
Judge
of the High Court
Malusi
J: I agree.
T
MALUSI
Judge
of the High Court
Govindjee
J: I agree.
A
GOVINDJEE
Judge
of the High Court
Appearances:
For
the
appellant:
Mr AS Zono
Mthatha
Instructed
by: A.S.
Zono & Associates
Mthatha
For
the
respondent:
Mr L Malala
Mthatha
Instructed
by:
Mvuzo Notyesi Inc
Mthatha
Date
reserved:
14 November 2022
Date
delivered:
13 December 2022
[1]
Even the court
a
quo
correctly identified the issue as follows:
“
The
issue for determination is whether the applicants have made out a
case for the relief sought, that being, furnished with the
accounting of the amount due, for the overtime work they performed.
Furthermore, whether they are entitled to an order
for payments, in
respect of the said overtime duties, by the respondent”.
[2]
Makhanya
v University of Zululand
2010
(1) SA 62
(SCA);
[2009] 8 BLLR 721
(SCA);
[2009] 4 All SA 146
(SCA)
at paras 71 and 72.
[3]
Amler’s Precedents of Pleadings: Harms 9
th
Edition at page 13 and the case referred therein.
[4]
1971 (3) SA 760
(A),
1971 (3) All SA 550
(A).
[5]
It reasoned as follows:
“
24.
In my view, the appellants could have employed PAIA.
Alternatively, each individual
could have requested her or his
information, as it is regarded as confidential and even safer so,
request in writing, as
Mrs Qhayiso – Giwu advised.
25.
I do not agree that a court application is onerous than completion
of the form required
in section 18 of PAIA. Section 9(d) of
PAIA state as much that PAIA enables access records, swiftly,
inexpensively and
effortlessly, as reasonable possible. The
court process on the other hand takes long, it is expensive and
requires more
effort”.
[6]
Doyle
Ibid and Nusca vs Nusca
1995
(3) All SA 104
(T);
1995 (4) SA 813
(T) page 817 para e-j.