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[2023] ZALAC 12
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North West Provincial Legislature and Another v National Education Health and Allied Workers Union obo 158 Members (JA17/22) [2023] ZALAC 12; [2023] 8 BLLR 745 (LAC); (2023) 44 ILJ 1919 (LAC) (21 June 2023)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA17/2022
In
the matter between:
NORTH
WEST PROVINCIAL LEGISLATURE
First
Appellant
AJ
MAPHETLE N.O.
Second
Appellant
And
NATIONAL
EDUCATION, HEALTH AND ALLIED
WORKERS
UNION obo 158 MEMBERS
Respondents
Heard:
18 May
2023
Delivered:
21 June 2023
Coram:
Sutherland and Musi JJA and
Savage AJA
Judgment
SAVAGE
AJA
Introduction
[1]
This
appeal, with the leave of the Labour Court, is against the judgment
and orders of the Labour Court (per Moshoana J) in terms
of which the
appellant, the North West Provincial Legislature (NWPL), was
interdicted and restrained from deducting any remuneration
from
members of the respondent, the National Union of Education, Health
and Allied Workers Union (NEHAWU) until it had complied
with section
34 of the Basic Conditions of Employment Act
[1]
(BCEA).
[2]
From 16 November 2020 until at least 15
December 2020, employees of the appellant engaged in unprotected
strike action. On 16 November
2020, the Secretary of the NWPL
(Secretary) issued a communique to staff members informing them that,
given the unprotected industrial
action, the principle of no work no
pay would apply to those employees who did not attend work. On 27
November 2020, the Labour
Court interdicted the strike, declaring it
unlawful. On 14 December 2020, the Secretary issued a further
communique to staff that
the principle of no work no pay was to be
implemented from 15 December 2020.
[3]
Despite the communiques issued,
remuneration was paid to all striking employees by the NWPL,
apparently because the NWPL failed
to halt its payroll run to
striking workers. Following this, the NWPL advised the respondent
employees that it would deduct the
remuneration paid to employees who
had been on strike from their salaries over a number of months.
[4]
This caused a dispute between the
parties and on 13 January 2021, the Secretary agreed to suspend
deductions until negotiations
between the parties had been concluded.
After several meetings, on 18 April 2021 the parties appointed a task
team to attempt to
resolve the issue. The task team was unable to do
so. After negotiations failed, on 2 November 2021, the Secretary
informed the
respondents that the NWPL would proceed to deduct three
working days’ remuneration each month from employees’
remuneration
until 15 April 2022. In response, NEHAWU approached the
Labour Court on an urgent basis under section 77(3) of the BCEA
seeking,
in part A of the application, urgent interim relief
interdicting and/or restraining the NWPL from effecting and/or
causing to effect
any deductions from the remuneration of the
respondent employees on the basis of their alleged participation in
an unlawful strike.
This was pending the hearing of part B, in which
an order was sought
inter alia
that the deductions made were in contravention of the BCEA and
unlawful. The Labour Court granted final interdictory relief in
the
matter and it is that order which is the subject of this appeal.
Judgment
of the Labour Court
[5]
The
Labour Court found that section 34(1) of the BCEA
[2]
applies to any deduction from an employee’s remuneration,
unless the legislated exceptions exist, namely that the employee

agrees in writing to the deduction, or the deduction is permitted by
law, collective agreement, court order or arbitration award.
[3]
Since no written agreement had been concluded with the employees, and
no law permitted a deduction from the salary of any employee,
the
deduction of remuneration by the NWPL was not permitted. The Labour
Court found there to be no conflict between section 67(3)
[4]
of the Labour Relations Act (LRA),
[5]
which provides for no work no pay during a protected strike, and
section 34 of the BCEA. Consequently, the deductions made, or
those
intended to be made, were unlawful and the NWPL was interdicted from
deducting remuneration from the salaries of NEHAWU’s
members
until it had complied with section 34 of the BCEA.
On
appeal
[6]
In this appeal, the NWPL contended that
section 34 of the BCEA does not apply where the principle of no work
no pay finds application;
that the no work no pay principle
constitutes a law as contemplated in section 34(1)(b), with the
result that there has been compliance
with the BCEA; that the
recovery of unearned salaries does not amount to self-help, with
set-off applicable; that the Labour Court’s
reliance on section
67(3)(b) was misplaced; and that the respondent employees are not
entitled to be unlawfully enriched.
[7]
The respondents oppose the appeal on the
basis that section 34 bars any deduction from an employee’s
remuneration unless one
of four statutory exceptions are met,
regardless of whether the no work no pay principle applies. The
constitutional rights of
workers are protected by section 34, which
includes that the recovery of monies the employer contends are owed
to it occurs through
a judicial process or with consent, which
negates self-help. Furthermore, there is no merit in the proposition
that the law of
set-off applies. Consequently, it was submitted, the
appeal must fail.
Discussion
[8]
Sec
tion
23(1) of the Constitution provides that everyone has the right to
fair labour practices. The BCEA gives effect to and regulates
this
right
inter
alia
by
establishing and enforcing basic conditions of employment,
[6]
which
include that an employer is to pay remuneration to an employee not
later than seven days after the completion of the period
for which
the remuneration is payable or of termination of the contract of
employment.
[7]
Remuneration is defined in both the BCEA and the LRA 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, and
“remunerate”
has
a corresponding meaning’.
[8]
[9]
In
seeking to advance economic development and social justice, the BCEA
also seeks to give effect to obligations incurred by South
Africa as
a member state of the International Labour Organisation (ILO).
[9]
This includes the ILO’s Protection of Wages Convention,
1949,
[10]
Article 8 of which
states that:
‘
1.
Deductions from wages shall be
permitted only under conditions and to the extent prescribed by

national laws or regulations or fixed by collective agreement or
arbitration award.
2.
Workers shall be informed, in the
manner deemed most appropriate by the competent authority, of
the
conditions under which and the extent to which such deductions may be
made.’
[10]
Section 34 of the BCEA is the national
provision which expressly bars deductions from an employee’s
remuneration, save for
in specified circumstances. It provides that:
‘
(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.
(2)
A deduction in terms of
subsection (1) (a)
may be made to reimburse an employer for
loss or damage only if –
(
a
)
the loss or damage occurred in the course of
employment and was due to the fault of the employee;
(b)
the employer has followed a fair procedure
and has given the employee a reasonable opportunity to show
why the
deductions should not be made;
(c)
the total amount of the debt does not exceed
the actual amount of the loss or damage; and
(d)
the total deductions from the employee’s
remuneration in terms of this subsection do not exceed
one-quarter of
the employee’s remuneration in money.’
[11]
Remuneration
is paid in terms of a contract of employment as a
quid
pro quo
for services rendered. Where services are not rendered by an
employee, as a general rule, remuneration is not payable. The
exercise
by employees of their constitutionally protected right to
strike occurs in the context of collective bargaining and involves a
power play between the parties. Within this context, the withholding
of labour by employees and the concomitant withholding of
remuneration by employers are powerful tools available to each of the
parties. The principle of no work no pay,
[11]
to which section 67(3) of the LRA gives effect means that “…
an
employer is not obliged to remunerate an employee for
services that the employee does not render during a

protected strike or a protected lock-out
”.
[12]
The same applies to an unprotected strike.
[12]
In spite of the fact that the NWPL was
not obliged to remunerate the respondent employees for services
that they did not render
during their unprotected strike, it did
so and thereafter sought to deduct such remuneration paid from their
salaries unilaterally,
without agreement or order obtained through an
adjudicative or judicial process.
[13]
The
appellants contend that the NWPL is entitled to effect deductions in
this manner since section 34 does not apply to deductions
made on the
basis of the no work no pay principle when it is the LRA that deals
with collective bargaining and not the BCEA; and
that it would be
artificial and non-sensical for an employer to be entitled to
withhold remuneration from a striking employee without
a court order
but require a court order to recover remuneration paid “
through
mere coincidence of timing
”.
It is further contended for the appellants that to the extent that
there is a conflict between the BCEA and the LRA insofar
as the
principle of no work no pay or its application is concerned, in terms
of section 210 of the LRA, it is the LRA which must
prevail.
[13]
[14]
There is no merit in this argument. The
principle of no work no pay permitted the NWPL to withhold
remuneration from striking employees.
It did not do so. The
appellants’ submission that the payment made did not constitute
the payment of remuneration in that
it was not a payment made or
owing “
in return for that
person working for another person
”
is similarly unmeritorious. The respondent employees were paid
precisely because they are employed by and work for the NWPL.
It
would be an unduly narrow interpretation of the definition of
remuneration were it to be found to exclude circumstances in which
no
work had physically been done by an employee, which would then
necessarily include when an employee is on leave or ill. The
payment
made by the NWPL to striking employees consequently falls squarely
within the definition of remuneration, as set out in
both the LRA and
the BCEA.
[15]
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.
[14]
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.
[15]
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
[16]
(
Ubogu
)
and in
Chief
Lesapo v North West Agricultural Bank and another,
[17]
it was made clear that taking the law into one’s own hands is
inconsistent with the fundamental principles of our law.
[18]
[16]
The
appellants’ contention that the recovery of unearned salary
cannot be equated to self-help on the basis that it concerns
the
deprivation of the property in the form of the salary paid to
employees is without merit. Similarly, the reliance placed on
Solidarity
obo Scholtz v Gijima Holding (Pty) Ltd
[19]
does not come to the aid of the appellants when, on the facts of that
matter, it was found that an agreement as contemplated by
section 34
existed between the parties as to the terms of an employee loyalty
incentive scheme.
[17]
Since
it is not common cause on what days or over what period all employees
were on strike, to allow deductions to be made unilaterally
by the
NWPL,
without
any agreement or impartial adjudication of the issue, would be
patently unfair, unjust and in violation of the express requirements

of section 34. As has been made clear by our courts, the rule against
self-help is necessary for the protection of the individual
against
arbitrary and subjective decisions and conduct of an adversary. It
serves as a guarantee against partiality and the consequent
injustice
that may arise
.
[20]
No
compliance with section 34
[18]
It
was contended in the alternative for the appellants that there had
been compliance with section 34. In the first instance, accepting

that in
Mpanza
and another v Minister of Justice and Constitutional Development and
Correctional Services and others
[21]
it was held that section 34(2)(b) obliges an employer to follow a
fair procedure before making any deduction to an employee’s

remuneration, the appellants contended that a fair procedure had been
followed in that a reasonable opportunity over more than
10 months
had been given to employees to make representations before
implementing the recovery of the unearned salaries. There
is however
no dispute that, despite that extended process, the deductions have
not been agreed with employees. It follows that,
in the absence of
such agreement, and with the matter not having been adjudicated, the
provisions of section 34 have not been complied
with.
[19]
The appellants also contended that
compliance with section 34 was to be found in the fact that the
principle of no work no pay is
a law contemplated by section
34(1)(b), section 67(3) or the common law and that, if an employer is
permitted to withhold the payment
of salary on the basis of such law
in its application of the no work no pay principle, there is no
reason why unearned salary cannot
be treated similarly and recovered
on the same basis. This submission has no merit. It fails to
appreciate the clear distinction
between an entitlement not to make
payment of remuneration under certain circumstances, such as those
that prevail in a strike,
and the entitlement to deduct under
circumstances such as those specified in section 34.
Set-off
finds no application
[20]
The
appellants
also submitted further that the NWPL was entitled to rely on set-off
as a principle of our common law. Set-off operates
only where two
persons reciprocally owe each other something in their own right.
[22]
It applies, as was stated in
Schierhout
v Union Government (Minister of Justice)
:
[23]
‘
When
two parties are mutually indebted to each other, both debts being
liquidated and fully due, then the doctrine of compensation
comes
into operation. The one debt extinguishes the other
pro tanto
[only to the extent of the debt] as effectually as if payment had
been made.’
.
[21]
In
Ubogu,
[24]
the Constitutional Court made it clear that the doctrine of set-off
does not operate
ex
lege
(as
a matter of law) and that where there are no mutual debts, but rather
an unresolved dispute about deductions made from an employee’s

salary, it cannot be applied. In the current matter, there remains a
dispute about the deductions which the NWPL has made or intends
to
make from the respondent employees’ salaries. The appellants’
submission, that the essential elements of set-off
are present,
consequently cannot be sustained. The extent of indebtedness of the
respondent employees to the NWPL has not been
determined and, in such
circumstances, it cannot be said that there exists a debt which is
due and payable. It follows that the
doctrine of set-off cannot find
application in this matter.
[22]
For
all of these reasons, the respondents held a clear right to obtain
final interdictory relief to prevent the appellants from
effecting
and/or causing to be effected any deductions from the remuneration of
the respondent employees until the NWPL had complied
with the
provisions of section 34. In such circumstances, with an
injury
actually committed or reasonably apprehended and no other
satisfactory remedy available to the respondents existed, the
decision of the Labour Court to grant such final relief cannot be
faulted.
[23]
It follows that the appeal cannot
succeed. Despite submissions to the contrary, having regard to
considerations of law and fairness
a costs order is inapposite in
this matter and no such order is made.
[24]
In the result, the following order is
made:
Order
1.
The appeal is dismissed with no order of
costs.
SAVAGE
AJA
Sutherland
and Musi JJA agree.
APPEARANCES:
FOR
THE APPELLANTS:
F
J Nalane SC with P J Kok and N Seme
Instructed
by
M
E Tlou Attorneys
FOR
THE RESPONDENTS:
F
A Boda SC
Instructed
by
Schöltz
Attorneys
[1]
Act of 75 of 1997.
[2]
Act 75 of 1997.
[3]
Section
34 provides that:
‘
(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.’
[4]
Section
67 states that:
(1)
In this Chapter, “protected
strike
” means
a
strike
that complies with the provisions of this
Chapter and “protected
lock-out
” means
a
lock-out
that complies with the provisions of
this Chapter.
(2)
A person does not commit a delict or a breach of contract by taking
part in—
(a)
a
protected
strike
or
a protected
lock-out
;
or
(b)
any conduct
in contemplation or in furtherance of a protected
strike
or
a protected
lock-out
.
(3)
Despite subsection
(2), an employer is not obliged to remunerate an
employee
for
services that the
employee
does
not render during a protected
strike
or
a protected
lock-out
,
however—
(a)
if the
employee’s
remuneration
includes
payment in kind in respect of accommodation, the provision of food
and other basic amenities of life, the employer, at
the request of
the
employee
,
must not discontinue the payment in kind during
the
strike
or
lock-out
;
and
(b)
after the end of
the
strike
or
lock-out
,
the employer may recover the monetary value of the payment in kind
made at the request of the employee during
the
strike
or
lock-out
from
the
employee
by
way of civil proceedings instituted in the Labour Court.’
[5]
Act 66 of 1995.
[6]
Section 2 reads:
‘
The
purpose of this Act is to advance economic development and social
justice by fulfilling the primary objects of this Act which
are –
(a)
to give effect to and regulate the
right to fair labour practices conferred by section 23(1) of the
Constitution –
(i)
by establishing and enforcing basic conditions of employment; and
(ii)
by regulating the variation of basic conditions of employment;
(b)
to give effect to obligations incurred by the
Republic as a member state of the International Labour
Organisation’.
[7]
Section 32(3) of the BCEA.
[8]
Section 1 of BCEA; section 213 of LRA.
[9]
Section 2(b) of the BCEA.
[10]
ILO standard C095 – Protection of Wages Convention, 1949 (No.
95).
[11]
Ekurhuleni
Metropolitan Municipality v South African Municipal Workers Union
obo members
(JA12/13)
[2014] ZALAC 61
;
[2015] BLLR 34
(LAC); (2015) 36 ILJ 624 (LAC).
[12]
Save for an exception only in relation to payments in kind in the
context of protected strikes. See note 4.
[13]
Section
210 of the LRA states: “
If
any conflict, relating to the matters dealt with in this Act, arises
between this Act and the provisions of any other law save
the
Constitution or any act expressly amending this Act, the provisions
of this Act will prevail
.”
[14]
See
Barkhuizen
v Napier
[2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at para
73.
[15]
Capitec
Bank Holdings Ltd and another v Coral Lagoon Investments 194 (Pty)
Ltd and others
[2021] ZASCA 99
;
[2021] 3 All SA 647
(SCA);
2022 (1) SA 100
(SCA) at
para 25.
[16]
[2017] ZACC 45
(CC); (2018) 39 ILJ 337 (CC);
2018 (2) BCLR 184
(CC)
at para 70.
[17]
[1999]
ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (
Lesapo
).
[18]
Lesapo
id at para 11 quoting
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
1989
(1) SA 508
(A)
at 511H-512A and
Nino
Bonino v De Lange
1906
TS 120
at
122.
[19]
[2019]
ZALAC 29; (2019) 40 ILJ 1216 (LAC); [2019] 8 BLLR 774 (LAC) at para
20.
[20]
Lesapo
id
at para 18.
[21]
[2017] ZALCJHB 48; (2017) 38 ILJ 1675 (LC); [2017] 10 BLLR 1062
(LC).
[22]
F du Bois (ed), ‘W
ille’s
Principles of South African Law’,9 ed (2007) at p 1834.
[23]
1926
AD 286
at 289. See also,
Capricorn
Beach Home Owners Association v Potgieter t/a Nilands and another
[2013] ZASCA 116; 2014 (1) SA 46 (SCA).
[24]
Ubogu
supra
at para 70.