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[2021] ZAECMHC 12
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Fly v King Sabata Dalindyebo Local Municipality (KSD) (855/2020) [2021] ZAECMHC 12 (24 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE NO.
855/2020
Date heard: 26 November 2020
Date delivered: 24 February 2021
In
the matter between:
NONTANDABUZO
FLY
Applicant
and
KING
SABATA DALINDYEBO
LOCAL
MUNICIPALITY (K.S.D)
Respondent
JUDGMENT
RUGUNANAN,
J
[1]
The short shrift approach
to this matter is that in motion proceedings an applicant must stand
or fall by their founding affidavit.
[1]
The point taken by the
respondent is that the applicant has failed to set out a cause of
action for the relief claimed in her notice
of motion. The dispute
between the parties emanates from the applicant’s employment
with the respondent. She pursues a contractual
remedy for restoration
of her employment rights and a statutory remedy under sections 33 and
34 of the Basic Conditions of Employment
Act
[2]
(hereinafter “the Act”) to be “informed” of
her employment conditions pertaining to working hours, overtime,
night shift, Sundays and public holidays.
[3]
[2]
In summary, the founding
affidavit discloses that the applicant commenced employment on 20
June 2014 as an Access Control Officer
in the respondent’s
Community Safety Department. The terms and conditions of her service
are set out in a letter of appointment
dated 23 June 2014
(hereinafter “the agreement”).
[4]
Emanating from the agreement, the applicant alleges, are rights in
respect of a monthly rental allowance, overtime work, night
work,
Sunday work, and public holiday work - the benefits of which she
alleges the respondent unlawfully withdrew during July 2019.
She
presently still holds the same position since date of appointment
albeit without being beneficially remunerated for those rights.
[3]
In substance, the
founding affidavit, goes no further than alleging that the respondent
acted without consulting her and did so
unlawfully,
unconstitutionally, and in conflict with its “Human Resources
Management Policies and Procedures”. Nothing
further is said
about identifying this document, particularly its status and
relevance to the applicant’s employment agreement.
Despite
merely referring to its italicised title, the applicant did not
undertake to make this document available to the court,
nor did she
ensure that the court file included a copy.
[4]
In her notice of motion
the relief which the applicant seeks, in addition to being awarded
costs, is composed in the following terms:
“
(1)
That the respondent’s withdrawal of applicant’s rights to
work overtime, night work, Sunday work,
public holiday work and right
to rental allowances and denial of benefits consequent upon those
rights be and is hereby declared
unlawful and accordingly set aside.
(2) That
the respondent’s failure to provide applicant with written
information relating (sic) applicant’s
number of ordinary,
Sunday, public holiday and overtime hours, the rate at which the
overtime is paid, and clear definition of
applicant’s rights
and benefits be and is hereby declared unlawful and accordingly set
aside.
(3) That
the respondent be and is hereby directed to forthwith re-instate
applicants right to work overtime,
night work, Sunday work, public
holiday (sic), rental allowance and all benefits associated with
those rights.
(4) That
the respondent be and is hereby directed to forthwith provide the
applicant with written information
relating to applicant’s
number of ordinary, Sunday, public holiday, and overtime hours, the
rate at which the overtime is
paid and a clear definition of
applicant’s rights and benefits associated with the right
aforesaid.”
[5]
In opposition to the case
put up by the applicant, the respondent relies on the the Act and the
applicant’s employment agreement.
[6]
Section 7 of the Act
deals with regulation of working time. Where relevant for present
purposes, it states:
“
Every
employer must regulate the working time of each employee-
(a)
in accordance with the provisions of any Act governing occupational
health
and safety;
(b)
with due regard to the health and safety of employees;
(c)
…;
(d)
… .”
[7]
In the main opposing
affidavit by the Municipal Manager of the respondent, Ngamla Pakade,
the respondent denies that it withdrew
the applicant’s
employment rights. The applicant’s erstwhile attorneys
presented the respondent with a medical certificate
from her medical
practitioner. Due to the applicant’s health condition, the
certificate advised that she was not fit to work
night shifts and
long hours in cold conditions. It recommended that she be
accommodated on light duties until she became fit and
recovered from
her medical condition. Following receipt of the certificate, the
respondent assessed the applicant and approved
the recommendation
that she be placed on light duties.
[8]
A supporting affidavit by
the Director of the respondent’s Department of Public Safety
and Traffic Management, Dial Kettledas,
confirms that he received and
perused the applicant’s medical certificate, that he undertook
the assessment of her, that
he approved the recommendation for her
placement on light duty, that he informed her thereof and advised her
that she will receive
benefits and allowances commensurate with light
duty, and that she understood and accepted the position without
objection
or subsequent complaint about the adjustment of the scope
of her work, and that discharged her duties in keeping with the scope
of work required of light duty.
[9]
The applicant’s
assignment of light duty came into effect on 1 July 2019. She was
required to work Mondays to Fridays from
08h00 to 17h00 in the
respondent’s call centre. She was not required to work overtime
beyond 17h00 on the specified days.
Although not referring to the
call centre, the extract of the respondent’s attendance
register
[5]
for the period July to September 2019 indicates that the applicant
was employed strictly in accordance with those hours.
[10]
James Xoseka, deposed to
a further supporting affidavit on behalf of the respondent. He is a
supervisor in the same department as
the previous deponent. He states
that he supervised the applicant’s duties with effect from
August 2019. He knows her personally
and is related to her. Moreover,
she never complained to him about an alleged withdrawal of her
employment rights. During the initial
period of the national lockdown
in 2020 the applicant did not report for work. He visited her at her
home and upon enquiring why
she did not report for duty, she informed
him that she was not an essential service employee.
[11]
The respondent maintains
that the applicant has to date not provided it with medical proof
that she has recovered from her medical
condition and is fit for
reinstatement to her former position. For this reason this court is
precluded from reviewing the decision
taken by the respondent to
place the applicant on light duty. Until such time as the applicant
has provided the requisite medical
proof the
status
quo ante
cannot be
restored. Consequently, the stance adopted by the respondent is that
the applicant is not entitled to receive benefits
and allowances
associated with and flowing from working night shifts, public
holidays, Sundays and overtime as in her former position
prior to 1
July 2019. In the circumstances the respondent denies that it acted
unlawfully and that the applicant has been disentitled
as she
alleges.
[12]
In reply, the applicant
denies the version of the respondent.
[13]
In heads of argument,
applicant’s counsel attached a series of pages purporting to be
extracts from the respondent’s
“Human Resources
Management Policies and Procedures”. Their content refers
variously to provisions regulating allowances
and payment for work on
Sundays and public holidays. I am unable to ascertain if these are
unadulterated pages extracted from a
document generated by the
municipality. Apart from being uncertified, the pages are undated,
offering no indication of when the
document from which they were
extracted came into existence. The complete document was not tendered
for perusal or filed of record.
A court should not be confronted by
oblique references to material concealed in unidentified documents
annexed to heads of argument
where no proper reference is made to
such material in an applicant’s papers.
[14]
In the circumstances, the
matter must be approached by recourse to the express provisions
contained in the applicant’s employment
agreement. Before doing
so it is useful to identify the principle of interpretation
applicable to the clauses mentioned hereunder.
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[6]
the Supreme Court of Appeal expressed the current state of the law
with regard to the interpretation of written instruments as
follows:
“
Interpretation
is the process of
attributing
meaning to the words used in a document
be it legislation, some other statutory instrument,
or
contract, having regard to the context
provided by reading the particular provision or provisions in the
light of the document as a whole and the circumstances attendant
upon
its coming into existence.
Whatever
the language of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears
;
the apparent purpose to which it is directed and the material known
to those responsible for its production. Where more than one
meaning
is possible each possibility must be weighed in the light of all
these factors.
The
process is objective, not subjective
.
A sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike results or undermines the apparent purpose
of the
document. Judges must be alert to, and guard against, the temptation
to substitute what they regard as reasonable, sensible
or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation;
in
a contractual context it is to make a contract for the parties other
than the one that they in fact made. The ‘inevitable
point of
departure is the language of the provision itself’
,
read in the context of having regard to the purpose of the provision
in the background to the preparation and production of the
document.”
(my own underlining)
Working
on Sundays, night shift and public holidays
[15]
Clause 5 of the
applicant’s agreement stipulates:
“
Your
working hours shall be from Mondays to Thursdays (8) hours per day
from 08h00 to 13h00 and 13h45 to 17h00 and on Fridays from
08h00 to
13h00 and 13h45 to 16h00, which hours you are expected to observe
minutely and any absence during these hours shall first
be approved
by your Head of Department or any official delegated by the Head of
Department. Working days and hours of employees
who work shifts are
as determined by their departments in line with duty rosters prepared
for that purpose.”
[16]
The specific provision
makes no mention of working at night, or on Sundays or public
holidays. A plain reading of the relevant clause
indicates that there
is no obligation on the respondent, as employer, to place the
applicant on duty on any of these days. There
is accordingly no
legally enforceable contractual obligation imposed on the respondent
to do so.
Overtime
[17]
In clause 14 of the
agreement it is stated that:
“
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 policy on overtime.”
[18]
Quoting only where
relevant, section 10 of the Basic Conditions of Employment Act
states:
“
(1)
Subject to this chapter, an employer may not require or permit an
employee to work-
(a)
overtime except in accordance with an agreement;
(2)
…
(3)
…
(4)
…
(5)
An agreement concluded in terms of subsection (1) with an employee
when the employee
commences employment, or during the first three
months of employment lapses after one year.”
[19]
When read together with
clause 5, clause 14 indicates that the applicant ordinarily does not
work overtime. Once again there does
not appear to be a legal
obligation on the respondent to place the applicant on overtime,
since this is dictated by work exigencies.
Section 10 of the Act
creates neither a right favouring an employee nor an obligation on an
employer to allow an employee to work
overtime. This must necessarily
be done in terms of an agreement which lapses after the period
mentioned in subsection 5.
Rental
allowance
[20]
A rental allowance of
R984.65 per month is specifically incorporated in clause 17 of the
employment agreement. In its replying papers,
the respondent’s
stance is that the applicant is not automatically eligible to receive
this allowance and other associated
benefits. She is only entitled to
receive allowances and benefits associated with light duty. Having
been placed on light duty,
the applicant does not qualify for the
allowance and she is not eligible to receive it as she did in her
former employment capacity.
[7]
The extant position is that her work allowances and benefits are
limited to the present scope of her work because of her health
condition, and at her own instance.
[8]
[21]
Applying the prescript in
the
Endumeni
case
supra
,
the employment agreement indicates that the rights for which the
applicant seeks restoration do
not accrue to her. To hold otherwise would be tantamount to making a
contract for the parties other than the one they in fact made.
Request
for information
[22]
The applicant does not
state for what period the information is requested. It is common
cause that prior to 1 July 2019 she received
all her benefits and
allowances including remuneration for overtime
etc
.,
commensurate with the level of the position to which she was
initially appointed. Although she disputes being placed on light
duty, her papers reflect that since 1 July 2019 she has not worked
overtime, nor on Sundays or public holidays. It is mystifying
to
conceive of the basis on which information should be made available
subsequent to the period 1 July 2019, assuming that is what
the
applicant requires. The period over which the specific relief is
claimed in paragraph 4 of the notice of motion has not been
set out.
In this light of this obscurity, the Act does not assist her.
Accordingly, the relief in paragraph 4 of the notice of
motion,
framed as obscurely as it is, is unenforceable. It is trite that
relief claimed which is incapable of enforcement should
be
refused.
[9]
[23]
Apart from the
imprecision in formulating her relief based on statutory grounds, the
applicant has plainly not been able to establish
rights flowing from
her employment agreement. It follows that the founding affidavit does
not make out a cause of action.
[24]
There are, of course,
other legal principles which may be employed to this kind of dispute.
[25]
An applicant who seeks
final relief on motion must, in the event of a conflict of facts,
accept the version set up by the respondent
unless the respondent’s
allegations are, in the opinion of the court, not such as to raise a
real, genuine or
bona
fide
dispute of fact
or are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers.
[10]
In the present case there is undoubtedly a material dispute of fact
between the parties. It follows that unless
I find that the
respondent’s allegations are so far-fetched or clearly
untenable that I am justified in rejecting them merely
on the papers,
or unless the applicant’s has requested to refer the matter for
the hearing of oral evidence, which she has
not, the application must
fail.
[26]
Did the facts put up by
the respondent in its opposing affidavit and supporting affidavits
raise a real and
bona
fide
dispute of fact?
In my view they clearly did. The applicant’s allegations were
contested by serious and unambiguous averments,
and not merely by
virtue of bald denials. Although no medical certificate of the
applicant was attached to the respondent’s
papers, or any proof
that an assessment was conducted of her medical condition by the
respondent, the question that remains to
be answered is whether the
respondent’s averments are so far-fetched and uncreditworthy
that they can be rejected out of
hand. In my view there are clearly
not, and it is extremely naïve of the applicant to expect the
respondent to have attached
her medical certificate to its opposing
papers. Whatever the reasons for this document not being attached, it
seems to me rather
that confidentiality should not be thrown to the
wind. I recognise that the truth in most instances lies “beyond
mere linguistic
determination”
[11]
but applying the above prescripts, it is doubtful if officials of the
respondent would conspire to concoct the version presented
on the
respondent’s affidavits. The respondent acted in accordance
with the Act when it placed the applicant on light duty
in
recognition of her medical condition. She has to date not furnished
medical proof that she has recovered from her medical condition
and
is fit for reinstatement to her former position. It is demonstrably
manifest that the respondent’s version cannot be
regarded as
fictitious or so far-fetched or untenable
that
it warrants rejection. And it is in my view similarly manifest that
the applicant must have anticipated that her claim would
be robustly
contested by the respondent. The applicant’s bare assertion
that she was placed on light duty by the respondent
without rhyme or
reason must have clearly foreshadowed the extensive disputes of fact
introduced by the respondent’s opposing
and supporting
affidavits.
[27]
There can be little doubt
that the applicant must have anticipated those disputes of fact, and
absent an application for the matter
to be referred for oral
evidence, I am constrained to decide the matter on the respondent’s
version.
[28]
In the circumstances the
following order issues:
“
The
application is dismissed with costs.”
S.
RUGUNANAN
JUDGE
OF THE HIGH COURT
Appearances:
For
the Applicant:
Mr. A. S. Zono
A.
S. ZONO & ASSOCIATES.
Attorneys for Applicant
ECDC BUILDING
MTHATHA
(Ref: SZ/ZM/F.2045)
Tel:
047 532 4263 or 083 364 3515
Email:
zono@telkomsa.net
aronsiphozono@gmail.com
For
the Respondent
Mr. L. Malala
MVUZO NOTYESI INC.
Attorneys for Respondent
14 Durham Street
2
nd
Floor Old TH
Madala Chambers
MTHATHA
(Ref: Mr. Malala)
Tel:
047 531 4714 or 083 758 2791
Email:
mnotyesi@telkomsa.net
malala.lindelani@gmail.com
This
judgment was handed down electronically by circulation to the
abovementioned legal representatives by email and release to
SAFLII.
The date and time for hand-down is deemed to be 09h30 on Wednesday 24
February 2021.
[1]
In
Director of Hospital Services v Mistry
1979 (1) SA 626
(AD) at 635H-636B, the Appellate Division held:
“When . . .
proceedings are launched by way of notice of motion, it is to the
founding affidavit which a Judge will look
to determine what the
complaint is. As was pointed out by Krause J in
Pountas’
Trustees v Lahanas
1924 WLD 67
at 68 and as has been said in
many other cases:
‘. . . an applicant must stand or fall by his petition and the
facts alleged therein and that, although sometimes it is
permissible
to supplement the allegations contained in the petition, still the
main foundation of the application is the allegation
of facts stated
therein, because those are the facts which the respondent is called
upon either to affirm or deny.’ ”
See also
Jozistat
(Pty) Ltd v Topaz Sky Trading 217 (Pty) Ltd and another
(2011/29988)
[2011] ZAGPJHC 91 (17 August 2011)
[2]
Basic Conditions of Employment Act, 1997 (Act 75 of 1997)
[3]
Founding affidavit para 3 read with para 11
[4]
Founding Affidavit, Annexure “A”, p12. Sections 33 and
34 respectively deal with “Information about remuneration”
and “Deductions and other acts concerning remuneration”.
[5]
Opposing affidavit, Annexure “NP1” p56
et seq
[6]
2012 (4) SA 593
(SCA) at paragraph [18]
[7]
Respondent’s additional heads of argument para 11
[8]
Opposing affidavit para 10.3
[9]
Mansell v Mansell
1953 (3) SA 716
(NPD) at 721E
[10]
Wightman t/a JW Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008 (3) SA
371
(SCA) at para
[12]
citing
Plascon-Evans Paints (Pty) Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C
and
Ripoll-Dausa v Middleton NO & Others
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C) at 151A-153C; See also
Fikile Makaula and Others v Zulu Royal
Family of Ncapayi Kamadzikane Kazulu and 17 Others
, Unreported
Mthatha Case No. CA 85/2015, paras 47-50
[11]
As articulated by Heher JA in
Wightman
supra
at 375D