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[2019] ZAECMHC 50
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Red Alert Cleaning and Security Services v Mqedlana and Others (CA32/19) [2019] ZAECMHC 50 (17 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION - MTHATHA
CASE NO. :
CA
32/19
Heard on: 23
August 2019
Date
delivered: 17 September 2019
In
the matter between:
RED
ALERT CLEANING AND SECURITY
SERVICES
Appellant
And
BABALWA
MQEDLANA AND OTHERS
Respondents
JUDGMENT
MAJIKI
J
[1]
On 26 June 2018, sixty four respondents approached the court
a quo
on an urgent basis, seeking an order of specific performance against
the appellant. The respondents had been in the employment
of
that appellant. They did not render services from 2 March
2018. They left their work station in the campuses of
Walter
Sisulu University (WSU) due to protests by the students and members
of National Education, Health and Allied Workers Union
(NEHAWU).
I will refer to those as members of the university community. On
6 December 2018 they obtained an order,
directing the appellant to
pay their salaries for the months of March 2018 to May 2018. With
the leave of the court
a quo
, the appellant now appeals
against the said order.
[2]
The grounds of the appeal summarily are that the court
a quo
:
·
failed to consider that the appellant had no sufficient time to apply
its
mind to the issues in the application to be in a position to
provide an answer to the issues with the requisite precision;
·
erred in failing to consider the principle of mutual obligations that
there
is no obligation to pay a salary to an employee who has failed
to render services under the contract of employment.
·
erred by failing to consider the confirmatory affidavits to the
answering
affidavit.
·
erred by failing to consider that the respondents were served with
notices
advising them of what the consequences of their failure to
render services in terms of the contract would be; and finally
·
erred by finding that the dispute did not relate to payment or
non-payment
of salaries. According to the appellant, there was
a dispute as to the obligation of the appellant to make payment.
[3]
It is common cause that the respondents, in terms of the contract of
employment with
the appellant were, placed at WSU by the appellant in
order to render security services. In return they were to
receive a
monthly salary of R3 000.00. On 2 March 2018
they were chased away by the members of the university community who
were
protesting on campus. They then left due to threats made
and fearing for their safety.
[4]
It is in dispute as to whether the respondents ever tendered their
services after
2 March 2018. It is also in dispute as to
whether the respondents had been given notice by the appellant prior
to the stopping
of their salaries. The appellant avers that it
issued the notice about the consequence of dismissal if the
respondents continued
to stay away from work. The respondents
in return aver that they never received any notice from the
appellant.
[5]
The court
a quo
in refusing that the matter be referred for
the hearing of oral evidence found that there were no disputes on the
issue of payment
or non-payment of salaries.
[6]
The issue on appeal is whether the respondents were entitled to the
relief for specific
performance. In determining that, the court
has to establish whether the respondents had tendered their services
in terms
of their contract of employment with the appellant.
Further, if they tendered their services, but due to circumstances,
they
still could not work, whether the appellant was entitled to
withhold payment of the respondents’ salaries.
[7]
During the hearing of the appeal Mr Bodlani counsel for the
appellant, submitted that
in order to establish the above, this court
has to have regard to what the respondents had averred were the terms
of their contract
with the appellant. It was furthermore
submitted that this court must have regard to the averments by the
appellant and evaluate
the areas of dispute in the parties’
facts.
[8]
Mr Bodlani correctly conceded that, if in the evaluation of the
dispute, the issue
of the tender to render services is concluded in
favour of the respondents, the appeal should fail. He also
conceded that
the respondents were justified in leaving their work
stations on 2 March 2018, when they were being threatened and chased
away
by striking members of the university community. For that
day, their conduct is not to be viewed as amounting to failure to
render services in terms of the contract of employment.
[9]
With regard to their alleged tendering of services, the respondents
averred that on
5 March 2018, the week following the one when they
were chased away, they reported for duty. They
alleged that
there was a protest once more, they were pelted with
stones and threatened by striking members of the university
community.
The mass action continued for a week which deterred
them from rendering services. They reported what happened
to their
onsite supervisors so that the supervisors could report same
to the management of the appellant.
[10]
On 12 March 2018 they again reported for work. They found
Fidelity security guards at the
gate. The said guards had a
list reflecting the respondents' names and restrained the respondents
from entering the university
premises. The guards told the
respondents that the appellant’s manager, Ms Lynette Rheeder,
instructed them not to
allow the respondents entry to the university
premises pending the respondents facing a charge of going away
without leave (AWOL).
[11]
On the week of 26 March 2018 the respondents went to the appellant’s
offices in Mthatha.
They were to seek clarity as to the state
of affairs, in the light of the above hindrances upon their
attempting to render their
services. Ms Rheeder advised that
the matter was handled at the appellant’s head offices in East
London and that the
respondents would be advised of progress.
[12]
After they did not receive their salaries on 30 March 2018, they
returned to the appellant’s
offices in Mthatha. They
again went to Ms Rheeder to find out about the non-payment of their
salaries as well as to the issue
of returning to work. She said
they must elect a representative from their ranks, to make written
representations as to why
the respondents had failed to go to work.
Indeed, the thirty seventh respondent did so on the respondents’
behalf.
[13]
For the entire month of April, they would go to the appellant’s
offices in Mthatha and
were always told that they would receive
notification about the payment of their salaries and the fate of
their employment.
Again they received no salaries for the month
of April. Further, they received neither a response to the
representations
they made nor advice about their salaries via short
message system (SMS) from the appellant.
[14]
They attended a disciplinary hearing on 22 May 2018. The
judgment was handed down on 7
June 2018, dismissing them without any
pronouncement on the outstanding salaries.
[15]
According to the appellant, the respondents were sent a message via
SMS. The message and
the respondents’ telephone numbers
are attached to the answering affidavit as annexure B-1. Reading:
“
To Red Alert staff striking in
Mthatha:
Please
do not take part in strikes without receiving permission from CCMA.
If the CCMA has not given permission, it
is unprotected,
and we will follow the steps set out in our internal disciplinary
process. This may include dismissing
striking staff.
Please report any acts of intimidation to supervisors.”
The
email creating the bulk SMS is dated 6 March 2018.
Another
SMS from the appellant to the respondents, marked as Annexure B2, is
attached to an email dated 16 March 2018 which reads
as follows:
“
You must write a statement
confirming that you want to return to work and the reasons for your
absence during the strike.
If you were intimidated, write who
intimidated you and who you reported it to. Fax statement:
086 679 1325 and your
application will be considered
individually and feedback again”.
According
to the appellant the respondents did not adhere to the request.
Most of the same respondents were dismissed in 2018
and reinstated.
They ought to have known the consequences of not reporting for duty.
[16]
The appellant initially disputed that the respondents were at work on
2 March. It alleged
that none of them signed the attendance
register, and that they also did not report to the university office
of appellant that
they were unable to work due to the strike.
[17]
The appellant averred further that during the week of 5 March 2018
the respondents were noticed
forming part of the strike. They
never reported for duty. The supervisors were able to attend to
their duties at the
same campus. After 5 March 2018 the strike
was not continuous. There were sporadic protests which would
not have hindered
the respondents from performing their duties.
They never tendered their services and again they never signed the
attendance
register. It is denied that on 28 March 2018 they
attended the offices of the appellant. Even if they did, that
was
after three (3) weeks of the commencement of the strike which
strike was long over. Some of the respondents made individual
representations not through an elected member at the instance of Ms
Rheeder, as the respondents allege.
[18]
Finally, the appellant is of the view that none of the respondents
tendered or rendered services
during the period in question and would
therefore not be entitled to remuneration.
[19]
According to Mr Bodlani the main and the relevant terms of the
agreement between the parties
are:
-
that the respondents shall offer their services to the appellant,
tender and avail themselves as servants of the appellant; and
-
that the appellant shall pay the respondents their monthly salaries
on every last day of the month.
[20]
Mr Bodlani also referred to an extract from Workplace Law by John
Grogan, (tenth edition), page
17. With regard to the duties of
employees the learned author states:
“
The
main contractual obligation of employees is to place their personal
services at their employer’s disposal. …
Under
both common law and statutes, employees who do not tender service are
not entitled to wages, irrespective of the reason for
their
non-tender. Conversely, an employee who does tender service but
is prevented by the employer from working is entitled
to be paid”.
[21]
Mr Bodlani submitted that there would have been no need to hold a
hearing before withholding
a salary when an employee has not tendered
his services. Even if the respondents were at work on 2 March
2019 and because
they had no choice, they had to flee for their
safety, there could be no basis for them not to render services on
the remaining
days. The respondents made a choice not to go to
work since the strike was sporadic after 5 March 2019. Further,
if
there were any circumstances that prevented them from working,
those were not at the instance of the appellant. The contract
with the appellant did not provide that they would be entitled to
payment of salaries in circumstances where they could not perform
their duties due to other supervening factors which are not caused by
the employer.
[22]
Mr Notyesi, attorney for the respondents, submitted that the person
who deposed to the answering
affidavit did not have personal
information on the crucial aspects of this case. He also did
not allege that the averments
are within his personal knowledge.
He further submitted that the respondents felt unsafe and the
appellant could not ensure
that the environment was safe for them to
continue working.
[23]
Mr Emile Mouton who deposed to the answering affidavit addressed the
aspects that relate to whether
the respondents tendered their
services. At paragraph 13, with regard to the week of 5 March 2018,
he says:
“
The supervisors noticed some of
the applicants being in the crowd forming part of the strike. …
[T]he supervisors of the
applicants still attended Walter Sisulu
University and attended to their duties. … In fact, after 5
March there were only
sporadic protests which would not have hindered
the applicants from doing their work”.
In
relation to the week of 12 March 2018 he stated “up to the week
of 12 March 2018 none of the applicants attended work or
signed any
attendance register.”
[24]
Mr Mouton denied the respondents’ assertion relating to the
specific times when the respondents
said they attended the office of
Ms Rheeder. However, he says nothing about the respondents’
averment that they went
to the appellant’s offices to clarify
issues as they always tendered their services to work. Further,
reference was
made to an attendance register that was not signed by
the respondents. He said that it shows that indeed the
respondents
were not at work. However, the said register has
not been attached to his answering affidavit.
[25]
A closer consideration of the appellant’s answering reveals
problems for its case.
It is not stated who of the supervisors
saw the respondents on the 5 March 2018. There are no
confirmatory affidavits from
the specific supervisors to whom the
answering affidavit referred to. The register that the
respondents were supposed to
sign and is said they did not sign, is
not attached to Mr Mouton’s answering affidavit. He stated that
he is conducting business
in Sunnyridge, East London. He did
not state how he knew that the strike was sporadic. He ought to
have stated on what
days of the period in question he was able to
state that there was no strike and how he ascertained that
information. Only
then would the court be able to distinguish
those days and make a determination as to whether the appellant was
justified in refusing
to pay the respondents for those days.
[26]
I consider the concession made that the respondents were at work on 2
March as having been correctly
made. If the appellant’s
case is that the register was not signed by the respondent even on 2
March 2018, when they
were admittedly at work, I do not find the said
signing system to be reliable. I would not be able to attach
much weight
to the issue of the attendance register even if it was
part of the papers.
[27]
With regard to the notices allegedly sent to the respondents, even if
they were received, they
are silent about the consequences of the
respondents’ dismissal. The dismissal eventuated after
the hearing.
No payment of salaries is claimed for the period
after that ruling. The issue of dismissal was correctly pursued
through
another legal dispensation, the Commission for Conciliation
Mediation and Arbitration (CCMA)
[28]
I agree with the contention that the court
a quo
ought to have
considered that there was a dispute around the issue of whether the
non-payment of salaries was justified.
Necessarily the court
a
quo
would have had to first determine if there was a dispute on
the main issue, that of the tender for services.
[29]
I do not find the objections by the respondents to
Mr Mouton’s affidavit that it contains hearsay
evidence to be
technical. The application was initially filed on 12 June 2018
as being urgent. Submissions were only heard
on 6 December 218.
I agree with the respondents that leave could have been sought to
file proper confirmatory affidavits
before or after the filing of the
respondents’ replying affidavits. In my view, the two
affidavits that were sought to be
filed in support of the answering
affidavits were correctly rejected by the court
a quo
.
Above the issue of whether a male or female deponent presented
themselves to the commissioner of oaths, when the
jurat
refers
to a gender different to that of the deponent. Even if one is
generous and accepts that the reference to the contents of
a founding
instead of an answering affidavit was an error, Ms Rheeder
specifically confirmed the contents leading to the strike
on 2 March
2018. She mentioned nothing about attempts by the respondents
to report for duty, post the events of 2 March 2018.
Her
affidavit would therefore not be of any consequence on the material
aspects. Ms Mqana merely said she is a supervisor,
and that she
confirmed the contents that relate to her. Nowhere did the
answering affidavit mention her name, also she did
not say she is one
of the supervisors referred to in the answering affidavits the
further issue relates to what is being sought
to be confirmed.
[30]
Having undertaken the above exercise, I am of the view that, in the
light of the problems highlighted
with the appellants’
answering affidavit, there cannot be any genuine dispute of fact on
the material aspects that require
determination. In particular,
I am unable to conclude that the issue of whether the respondents
tendered their services was
effectively contested by the appellant.
[31]
In my view, the respondents tendered their services. They were
prevented from continuing with
their duties by circumstances, which
included their not being safe from the striking members of the
university community, together
with the fact that they were advised
not to return to work pending the hearing of disciplinary
proceedings. The evidence
establishes that during the launch of
the strike the environment was not safe for the respondents.
They had to leave the
site. Consequently, the appellant would
not have been entitled to withhold the respondents’ salaries.
[32]
In conclusion, the court
a quo
was correct, still, in granting
the relief sought by the respondents.
In
the result,
The
appeal is hereby dismissed with costs.
___________________________
B
MAJIKI
Judge
of the High Court
G
H BLOEM
I
agree
________________________________
G
H BLOEM
Judge
of the High Court
A
DA SILVA
I
agree
________________________________
A
DA SILVA
Acting
Judge of the High Court
Counsel
for the appellants
: Advocate
A Bodlani
Instructed
by
: Messrs
SPF Attorneys
27
Blakeway Road
MTHATHA
Counsel
for the respondents
: Mr
M
Notyesi
Instructed
by
: Messrs Mvuzo Notyesi
Incorporated
14
Durham Street
MTHATHA