IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: JS836/18
In the matter between:
IMATU First Applicant
THE INDIVIDUALS LISTED IN ANNEXURE “A”
TO THE REFERRAL Second and Third Applicants
THE INDIVIDUALS LISTED IN ANNEXURE “B”
TO THE REFERRAL Fourth to Further Applicants
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Respondent
Heard: 6 and 10 March 2023
Delivered: 10 January 2024
JUDGMENT
VOYI AJ
2
Introduction
[1] This is a claim brought by the applicants in terms of section 77(3) of the Basic
Conditions of Employment Act1 (BCEA), in which they inter alia seek an order
declaring that the respondent is obligated to subsidise 70% of the second to
further applicants’ post-retirement medical aid contributions.
Background
[2] The first applicant is the Independent Municipal and Allied Trade Union
(IMATU), a trade union registered in terms of section 96 of the Labour
Relations Act2 (LRA). IMATU, together with the second to further applicants
bring their claim against the respondent, the City of Tshwane Metropolitan
Municipality (Municipality), a metropolitan municipality established in terms of
the Local Government : Municipal Structures Act, 3 read with Notice No. 6770
of 2000 published in the Gauteng Provincial Gazette Extraordinary No. 141
dated 1 October 2000.
[3] The claim under consideration was instituted with this Court on 23 October
2018 under Rule 6 of the Rules of the Labour Court. 4 To be specific in this
regard, a statement of claim contemplated by Rule 6(1) was served on the
Municipality on 19 October 2018. It was then filed with this Court on 23
October 2023. A response as envisaged by Rule 6(3) was only delivered by
the Municipality on 6 February 2019.
[4] As Rule 6(3)(c) requires that a response to a statement of claim be delivered
within 10 days of the date on which the statement of claim is delivered, the
Municipality’s response was out of time. On 2 October 2020, an application for
condonation of the late delivery of the response to the statement of claim was
launched by the Municipality. On 17 August 2021, t his Court granted
condonation for the late delivery of the Municipality’s response to the
statement of claim.
1 Act No. 75 of 1997, as amended.
2 Act No. 66 of 1995, as amended.
3 Act No. 117 of 1998.
4 Rules for the Conduct of Proceedings in the Labour Court, as published in Government Notice 1665
of 14 October 1996, as amended.
3
[5] When the claim was instituted, it concerned 27 individual applicants. At the
hearing of this matter, I was informed that the matter became settled in
respect of 13 individual applicants and an order in this regard was issued by
this Court. I was, particularly, referred to an order granted by this Court on 17
August 2021. In terms of that order, t here were 14 individual applicants in
respect of whom the matter was postponed sine die, with costs reserved.
[6] When the matter came before me, it was for the trial in respect of the 14
remaining individual applicants. During the trial, it was conveyed by counsel
for the applicants that one of the 14 remaining applicants, being Ms Amanda
Strydom, was no longer an applicant in this matter . That reduced the number
of remaining applicants to 13. I provide full details of the 13 remaining
applicants (applicants) later in this judgment.
[7] It is apposite , at this juncture, to give some historical background to the
matter. This background specifically focuses on the origin and evolution of the
alleged legal entitlement to subsidy, by the Municipality, towards post -
retirement medical aid contributions of the remaining applicants . I may add
that this background is largely common cause between the parties.
[8] According to the statement of claim, the second to further applicants were,
prior to 5 December 2000, employees of the Transitional Local Council of
Bronkhorstspruit.5
[9] In their statement of claim, the applicants trace the legal basis for the
Municipality’s obligation to subsidise their post -retirement medical aid
contributions to the provisions of a certain Ordinance dating back to 1939,
namely section 79 bis(1) to the Local Government Ordinance, 1939 6 (1939
Ordinance). This particular section was inserted into the 1939 Ordinance by
section 2 of Ordinance 14 of 1964 and was subsequently amended a few
times.7
5 A Local Council established in terms of section 1 of Proclamation No. 47 (Premier’s) of 1994
(published in Provincial Gazette Extraordinary No. 5074 of 15 December 1994).
6 Ordinance No. 17 of 1939, as amended.
7 The 1939 Ordinance was amended by section 4 of Ordinance 9 of 1983 and by section 10 of
Ordinance 16 of 1984.
4
[10] Following an amendment of 27 December 1990, the provisions of section
79bis(1) of the 1939 Ordinance read thus:
‘(1) The Administrator may establish a joint medical aid fund (hereinafter
in this section referred to as the fund), for the benefit of employees
and retired employees of councils and of any other body established
in the interest of local government and approved by the Administrator
and for the benefit of the dependants of such employees and retired
employees.’8
[11] According to the applicants and with effect from 1 January 1966 , the
Administrator by way of Administrator’s Notice No. 825 (published in the
Provincial Gazette on 27 October 1965) established and approved the Joint
Municipal Medical Aid Fund - Transvaal (JMMAF) as well as the regulations
governing it. It is not disputed that the then Town Council of Bronkhorstspruit ,
as was defined in Administrator’s Notice No. 12 of 1 July 1935, was at all
relevant times associated with the JMMAF. As will become apparent shortly
below, the Town Council of Bronkhorstspruit was the predecessor to the
Transitional Local Council of Bronkhorstspruit.
[12] It is further contended by the applicants , and not disputed by the Municipality ,
that Regulation 6 of the Regulations governing the JMMAF made it
compulsory for employees of the Town Council of Bronkhorstspruit, and/or its
successors, to become members of the fund and also provide d for continued
membership after retirement as well as for admission, as members, the
widows of deceased members.
[13] With effect from 15 December 1994 and in terms of section 2(1) of
Proclamation No. 47 of 1994 (published in Provincial Gazette Extraordinary
No. 5074 of 15 December 1994) (1994 Proclamation) , the historic Town
Council of Bronkhorstspruit was dissolved.9
8 These are the provisions of section 79 bis(1) of the 1939 Ordinance as amended by Local
Government Amendment Proclamation, 1990 (Proclamation No. 40 of 1990 as published in the
Provincial Gazette Extraordinary No. 4730 of 27 December 1990).
9 In the same provision, the Town Committee of Zithobeni and the area of Rethabiseng were also
dissolved.
5
[14] In terms of the 1994 Proclamation,10 a Transitional Local Council, called the
Transitional Local Council of Bronkhorstspruit, was established as
contemplated in section 7(1)(b)(i) of the Local Government Transition Act ,11
comprising of the dissolved Town Council of Bronkhorstspruit, the Town
Committee of Zithobeni and the area of Rethabiseng.
[15] The Transitional Local Council of Bronkhorstspruit was, in terms of section s 1
and 13 of the 1994 Proclamation, deemed to be a local authority as
contemplated in Part III of the Sixth Schedule to the 1939 Ordinance referred
to herein before. Its area comprised the existing area of jurisdiction of the
dissolved Town Council of Bronkhorst spruit, the existing area of jurisdiction of
the dissolved Town Committee of Zithobeni and the existing area of
Rethabiseng.
[16] As empowered by the provisions of section 10(3)(f )(i) of the Local
Government Transition Act, the 1994 Proclamation provided , under section
13(1) thereof, that all employees and officers in the service of the dissolved
local government bodies (being the Town Council of Bronkhorst spruit, the
Town Committee of Zithobeni and the area of Rethabiseng) shall be
transferred to the Transitional Local Council of Bronkhorstspruit subject to
conditions not less favourable than those under which they served and
applicable labour law.
[17] In terms of section 10(3)(f)(iii) of the Local Government Transition Act, the
dissolution of the Town Council of Bronkhorst spruit, the Town Committee of
Zithobeni and the area of Rethabiseng included the continued application of
the resolutions, by -laws and regulations of the dissolved local government
bodies.
[18] The transfer of all the employees and officers in the service of the dissolved
local government bodies was also effected in accordance with section 10(3)(j)
of the Local Government Transition Act, which provided for the protection of
10 Under section 1 thereof.
11 Act No. 209 of 1993.
6
the rights and benefits, including the remuneration, allowance and pension
benefits of the said employees and officers, subject to applicable labour law.
[19] The 1939 Ordinance, particularly section 79 bis thereof, was repealed by
section 58 of the Rationalisation of Local Government Affairs Act 12
(Rationalisation Act). The Rationalisation Act was published for general
information in Provincial Gazette Extraordinary No. 19 of 5 March 1999. It
came into effect on 19 March 1999. From this date onwards, section 79 bis(1)
of the 1939 Ordinance was no longer part of our law.
[20] However under section 59, the Rationalisation Act provided that despite the
repeal of the provisions of the 1939 Ordinance, any action taken in terms of
the repealed provisions shall be regarded to have been taken under the
corresponding provisions of the Rationalisation Act and will continue to be
valid or have force and effect except if it is inconsistent with the Local
Government Transition Act, the Rationalisation Act or any other law.
[21] On 5 December 2000, the Transitional Local Council of Bronkhorstspruit was
disestablished and its employees were all transferred to Kungwini Local
Municipality. The transfer was effected in accordance with the provisions of
section 197 of the LRA and the transferred employees retained all the terms
and conditions of employment which they had or enjoyed while in the employ
of the Transitional Local Council of Bronkhorstspruit.
[22] On 18 May 2011, Kungwini Local Municipality was disestablished and
incorporated into the Municipality herein. All the employees of Kungwini Local
Municipality were transferred to the Municipality in terms of the provisions of
section 197 of the LRA and they retained all their conditions of employment.
[23] Flowing from this historical background, it is contended by the applicants that
the Municipality is liable for the contractual obligations it inherited from
12 Act No. 10 of 1998.
7
Kungwini Local Municipality concerning them in particular . The full names of
the applicants are as follows13:
23.1 Oupa Joseph Mashiane (2/8/1982);
23.2 Maria Jacoba Serfontein (2/1/1985);
23.3 Jacquiline Meiring (9/8/1998);
23.4 Jacob Christoffel Lombard (7/1/1999);
23.6 Charmaine Venter (Roesch) (8/8/1994);
23.6 Ida Botha (1/1/2000);
23.7 Abraham Paulus Kruger (1/1/2002);
23.8 Phillimoh William M Thusi (8/1/2004);
23.9 Moses Makgokolose Lekoadu (8/1/2005);
23.10 Daniel Stephanus Coetzee (6/1/2006);
23.11 Catherine Eunice Lekoadu (8/1/2008);
23.12 Shantal Jean Perry (9/1/2008); and
23.13 Margaretha van Tonder (8/7/2007).
[24] As for the basis of the contended liability, it is necessary to deal with the
pleadings in some detail. Emanating directly from the statement of claim, the
case pleaded by the applicants is as follows:
‘3.1 Prior to 5 December 2000 the Second to Further Applicants were
employees of the Transitional Local Council of Bronkhorstspruit (“the
Bronkhorstspruit Municipality”).
3.2 The Bronkhorstspruit Municipality was disestablished with effect from
on or about 5 December 2000 and those Second to Further Applicants
who were employed by the Bronkhorstspruit Municipality at the time,
with effect from 6 December 2000, were all transferred to the
Kungwini Local Municipality (‘Kungwini Municipality’).
3.3 The aforementioned transfer of the Second to Further Applicants, so
transferred from the Bronkhorstspruit Municipality to the Kungwini
Municipality, was conducted in accordance and compliance with the
provisions of section 197 of the LRA and with retention of all the terms
13 In brackets are the dates of employment of the individuals, as alleged by the applicants in Annexure
B to the statement of claim. As will become more apparent later in this judgment, the alleged dates of
employment are in dispute.
8
and conditions of employment, which the said applicants have had or
enjoyed at the Bronkhorstspruit Municipality.
3.4 Prior to the transfer of the second to further applicants mentioned in
paragraph 3.2 above, and their contracts of employment to the
Kungwini Municipality, and whilst employed at the Bronkhorstspruit
Municipality, it was a condition of employment of the said applicants,
and part of their contracts of employment, that the Bronkhorstspruit
Municipality would subsidise 70% of the said applicants’ post -
retirement medical aid contributions…
3.5 When those of the Second to Further Applicants, referred to in
paragraph 3.2 above, were transferred from the Bronkhorstspruit
Municipality to the Kungwini Municipality as aforesaid, they possessed
and retained, as part of their conditions of employment and their
contracts of employment, their right or benefit that Kungwini
Municipality would subsidise 70% of their post -retirement medical aid
contributions. The Second to Further Applicants, who became
employees of the Kungwini Municipality after 6 Decem ber 2000 were
employed on the same terms and conditions of employment providing
that the Kungwini Municipality would subsidise 70% of their post -
retirement medical aid contributions.
3.6 Kungwini Municipality was disestablished during or about May 2011
and incorporated into the Respondent. At the same time of this
incorporation the former employees of Kungwini Municipality, including
the Second to Further Applicants, were transferred to the Respondent
in terms of the provisions of section 197 of the LRA.
3.7 The Second to Further Applicants on their transfer from Kungwini
Municipality to the Respondent retained their conditions of
employment, including the right in terms of which 70% of their post -
retirement medical aid must be subsidised by the Respondent.
3.8 Consequently, the Second to Further Applicants at all relevant times,
whilst employed by Respondent and as part of their contracts of
employment with Respondent remained entitled to have 70% of their
9
post-retirement medical aid contributions subsidised by the
Respondent.
…
3.13 Second to Further Applicants are entitled to an order declaring that
Respondent is obliged to subsidise 70% of their post -retirement
medical aid contributions.’
[25] For purposes of this judgment, reference to the second to further applicants in
the above-quoted passages of the statement of claim is to be construed as
referring to the applicants listed in the paragraph preceding the above.
[26] In its response to the statement of claim, the Municipality denied inter alia that
the applicants are its current and former employees. This denial was
expanded on by specifically denying that the said applicants were employees
of the Transitional Local Council of Bronkhorstspruit (Bronkhorstspruit
Municipality) prior to 5 December 2000.14
[27] The Municipality further denied that the applicants were transferred from the
Bronkhorstspruit Municipality to Kungwini Local Municipality.15 In no uncertain
terms, the Municipality denied that the applicants were employees of
Kungwini Local Municipality and/or its predecessor. 16 In its response to the
statement of claim, the Municipality summed up the issues arising in this
matter as follows:
‘17. The issues that arise in this matter are:
17.1 Whether the second, third, fourth and further applicants were
employees of Bronkhorstspruit Municipality;
17.2 If so, whether it was a condition of their employment, if
employed, that Bronkhorstspruit Municipality would subsidise
70% of their post-retirement medical aid contributions;
14 Ibid, at paragraph 3, read together with paragraph 3.1 of the statement of claim.
15 At paragraph 4 of the response to the statement of claim.
16 Ibid, at para 8.1
10
17.3 Whether the individual applicants are entitled to subsidised
contribution by the respondent towards their post -retirement
medical aid.’
[28] During the course of the litigation, the parties convened no less than five pre -
trial conferences. The first pre -trial conference was conducted through
correspondence and the minutes thereof were signed on 20 May 2019. In the
signed minutes, it was particularly recorded as being in dispute : (a) whether
the individual applicants were employees of the Bronkhorstspruit Municipality
prior to 5 December 2000; (b) whether it was a condition of employment of the
said applicants that the Bronkhorstspruit Municipali ty would subsidise 70% of
the said applicants’ post -retirement medical aid contributions ; (c) whether,
when the individual applicants were transferred from the Bronkhorstspruit
Municipality to Kungwini Local Municipality they retained , as part of their
conditions of employment and their contract s of employment , the right or
benefit that Kungwini Municipality would subsidise 70% of their post -
retirement medical aid contributions ; (d) whether the individual applicants on
their transfer from Kungwini Local Municipality to the respondent retained their
conditions of employment, including the right in terms of which 70% of their
post-retirement medical aid must be subsidised by the respondent ; and (e)
whether the individual applicants were/ar e employed by the respondent in
terms of contracts of employment entitling them to a post -retirement medical
aid contribution subsidy by the respondent at 70%.
[29] The second pre -trial conference was held virtually on 2 June 2020. The
minutes thereof were signed on 12 August 2020. As part of this conference,
specific concessions were sought from the Municipality by the applicants. In
its response, the Municipality did not concede that post-retirement medical aid
contribution subsidy was a condition of employment of any of the employees
of the Bronkhorstspruit Municipality.
[30] The third pre -trial conference was held on 20 July 2021. At this conference,
concessions were again sought from the Municipality. I n particular, it was
enquired whether the Municipality was prepared to concede:
11
‘6.1.3 the dates of employment of each of the Applicants listed and as
recorded in annexure “B” to the statement of case and if the
Respondent differs from the dates as recorded, the Respondent is
requested to state the dates of employment of each of the said
Applicants…’
[31] In a direct response to inter alia the above, the Municipality retorted: “No. The
applicants to prove their contracts of employment ”. This response was
recorded at paragraph 9 of the Municipality’s response to pre -trial questions
dated 4 August 2021.
[32] The fourth pre -trial conference was held o n 11 August 2021. The minutes
thereof, at paragraph 2.9, recorded the following pertinent stance by the
Municipality:
‘Answer: The [Municipality] has submitted to the applicant a list of those
applicants who it contends never had the condition of employment as pleaded
in paragraph 34 of the statement of claim. The [Municipality] persists with its
denial that such applicants had as a condition of employment and that it was
part of their contracts of employment that Bronkhorstspruit Municipality would
subsidise 70% of their post-retirement medical aid contributions.
The [Municipality] records that section 76bis (sic) of the Local Government
Ordinance 17 of 1939 or any part of the Ordinance does not apply to all those
employees who were employed with effect from 19 March 1999 including
those who accepted new appointments after the said date. Accordingly, this
includes all those applicants listed in the list already furnished to the
applicants. For avoidance of any doubt, the names are repeated hereunder …’
[Own emphasis]
[33] The individual applicants listed in the above-quoted passage of the minutes
were the 14 remaining individual applicants already alluded to herein before.
At paragraph 2.12 of the minutes of the fourth pre -trial conference, the
following was recorded:
‘2.12 At the pre-trial meeting the respondent only recorded the following:
12
2.12.1 employees employed by the council/s prior to 19 March 1999
and who remained employed in those positions until retirement
are entitled under the 1939 Ordinance to post -retirement
medical aid subsidies;
2.12.2 employees employed prior to 19 March 1999 and subsequently
accepted new appointments after 19 March 1999 and after
repeal of the 1939 Ordinance, are not entitled to post -
retirement medical aid subsidies, because such new
appointments constituted new contracts of employment; and
2.12.3 employees employed by any of the Councils with effect from
19 March 1999 are opt entitled to the medical aid subsidy.’
[34] At paragraph 2.13 of the aforesaid minutes, it is also recorded thus:
“Respondent also records that each employee must prove his or her case”.
[35] The fifth and last pre -trial conference was held on 12 August 2021. In the
minutes thereof, a grammatical error was noted in paragraph 2.12.2 of the
minutes of the fourth pre-trial conference.
[36] At the last pre -trial conference, the Municipality solicited the applicants’
reactions to certain issues, questions and concessions sought. The minutes of
this conference also record ed the applicants having asked the Municipality to
concede that what it has recorded in paragraph 2.12 of the minute s of the
conference held on 11 August 2021 had not been pleaded by it. In the
minutes, the Municipality’s response is recorded as follows:
‘5.2.1 Respondent denies liability to pay any part of the medical aid
contribution after retirement. The applicant has to prove this.
5.2.2 On Tuesday 10 August 2021, as well as 11 August 2021, and also on
12 August 2021 respondent stated its position with regard to
paragraph 2.12. Applicants are fully aware of [the] respondent’s
position. In the event the applicants insist it must be formally [pleaded]
notwithstanding denial by [the] respondent, [the] Respondent will file a
notice to amend so as to plead at the instance of the applicants.’
13
[37] The applicants responded to the concessions sought by the Municipality. In
essence, the applicants took the position that the issues, questions and
concessions sought by the Municipality were issues not pleaded by it and
were thus irrelevant and the y (the applicants) were not obliged to respond
thereto. As for what is recorded in paragraph 2.12 of the minutes of the
conference held on 11 August 2021, the applicants responded inter alia as
follows:
‘6.4 Applicants have prepared and are ready to proceed with the case as
pleaded by the parties. If [the] respondent intends to pursue its case
on the basis as recorded in paragraph 2.12 of the pre -trial hearing
minute of 11 August 2021, [the] respondent is obliged to follow the
appropriate procedures to amend its statement of defence, with full
reservation of the applicants’ rights.’
[38] The Municipality did not take up the invitation to amend its response to the
statement of claim by pleading a defence akin to that which was recorded at
paragraph 2.12 of the minutes of the fourth pre -trial conference held on 11
August 2021. I therefore find force to the argument that was aptly advanced
by counsel for the applicants, Advocate G L van der Westhuizen, that the
Municipality cannot in this matter advance a defence which falls outside the
four corners of its pleaded case.17
[39] However, it is my considered view that this constraint for the Municipality is
not dispositive of the matter. The bare denial of liability, as pleaded by the
Municipality, still stands and sharply confronts the applicants in this matter.18
[40] As the applicants bore the onus to prove their claim ,19 it behoved them to
present evidence to establish the factual allegations they advanced in their
17 In the leading case of Robinson v Randfontein Estates G.M. Co. Ltd 1925 AD 173 at p. 198, it was
said thus: “The object of pleading is to define the issues; and parties will be kept strictly to their pleas
where any departure would cause prejudice or would prevent full enquiry. But within those limits the
Court has a wide discretion”. The principle in this case was applied in Shill v Milner 1937 AD 101 and
in Marine & Trade Insurance Co. Ltd v Van der Schyff 1972 (1) SA 26 (A). In Nyandeni v Natal Motor
Industries Ltd 1974 (2) SA 274 (D) at 279B - C, it was also held thus: “The purpose of pleading is to
clarify the issues between the parties and a pleader cannot be allowed to direct the attention of the
other party to one issue and then, at the trial, attempt to canvass another.
18 The following rule as stated by Voet (22.3.10) is apposite in this instance, namely: “He who asserts,
proves, and not he who denies, since a denial of a fact cannot naturally be proved provided that it is a
fact that is denied and that the denial is absolute”.
14
statement of claim.20 I say this mindful of the stance taken by the parties in the
minutes of the first pre-trial conference which were signed on 20 May 2019,
wherein it was recorded as follows at paragraph 9 with reference to the duty
to begin:
‘The applicants accept the duty to begin but submit that the onus of proof is
determined by the pleadings.’
[41] I find the above formulation of who exactly bore the onus of proof to be
unhelpful. Nonetheless, there can be no denying that the applicants bore the
onus in this matter.21
[42] In light of the provisions of section 59 of the Rationalisation Act, and in order
to be covered by the provisions of section 79 bis(1) of the 1939 Ordinance, it
seems to me that the individual applicants who were allegedly employed by
the Bronkhorstspruit Municipality and its predecessor had to prove their dates
of employment. 22 I say this as the Municipality conceded the entitlement of
such applicants to the claimed post-retirement medical aid subsidies based on
the 1939 Ordinance.23
[43] At the hearing of the matter before me , not even one of the 13 remaining
individual applicants was called as a witness to lead evidence on the factual
averments advanced in the statement of claim.
19 The word onus in this context denotes the duty which is cast on the particular litigant, in order to be
successful, of finally satisfying the Court that he is entitled to succeed on his claim – see: Pillay v
Krishna and Another 1946 AD 946 (Pillay) at pp. 952 - 3.
20 In Van Wyk v Lewis 1924 AD 438 at p. 444, Innes CJ held thus: “The question of onus is of capital
importance. The general rule is that he who asserts must prove”.
21 In Pillay supra at p. 952, it was held thus: “The onus is on the person who alleges something and
not on his opponent who merely denies it”.
22 According to the statement of claim, para 2.3 thereof, read with Annexure B, O J Mashiane is
alleged to have been employed on 2 August 1982, M J Serfontein is alleged to have been employed
on 2 January 1985, J Meiring is alleged to have been employed on 9 August 1998, J C Lombard is
alleged to have been employed on 7 January 1999, and C Venter is alleged to have been employed
on 7 January 1991. In response to para 2.3, the Municipality, in its response to the statement of claim,
denied that the applicants are currently employed by it either as alleged or at all and defied the
applicants to prove this. At para 8.1, the Municipality denied that these applicants, in particular, were
employees of Kungwini Local Municipality and/or its predecessor.
23 At paragraph 2.12.1 of the minutes of the pre -trial conference held on 11 August 2021, it was
recorded by the Municipality: “employees employed by the council/s prior to 19 March 1999 and who
remained employed in those positions until retirement are entitled under the 1939 Ordinance to post -
retirement medical aid subsidies…”
15
[44] What was contended by the applicants in their statement of claim had to be
supported by evidence. This basic notion can best be illuminated with
reference to what Barry JP said in Jones v Hamilton & Haw24 at p. 224:
‘There is a distinction between giving evidence of a fact and stating that fact ...
Stating that a thing was done is stating a fact; giving the details of how it was
done would be giving evidence of it.’25
[45] The necessity of evidence to prove the applicants’ factual averments was
indispensable on the face of the Municipality’s denials , as set out in the
response to the statement of claim.
[46] In this case, there were applicants who were alleged to have been employed
prior to the repeal of section 79 bis(1) of the 1939 Ordinance. One would have
expected that such applicants would come forward and simply present
evidence of when they were employed, thus placing themselves within the
confines of section 79bis(1). Surprisingly, no evidence was led to prove when
each of these applicants were employed.
[47] There was simply a dearth of evidence at trial to sustain the applicants’ claim
to their entitlement to post-retirement medical aid subsidy by the Municipality.
No explanation whatsoever was given as to why none of the remaining
applicants were called as witnesses to testify in support of their case. The
failure of the individual applicants to testify in support of their claim leaves a
question mark in this case.26
[48] It seems clear to me that this is one of those cases where an adverse
inference can be drawn from such failure, especially considering the
supposed importance of the matter for the individual applicants and their well -
being. In Galante v Dickinson27, it was held as follows with reference to such
an inference:
24 (1885-1887) 5 EDC 222.
25 Also quoted in Jacoti Construction CC v PHG Group C C (6006/2017) [2018] ZAFSHC 201 (16
November 2018).
26 See: Thomson v Thomson 1948 (1) SA 958 (D) and 1949 (1) SA 445 (A).
27 1950 (2) SA 460 (AD) at 465.
16
‘In the case of the party himself who is available, as was the defendant here, it
seems to me that the inference is, at least, obvious and strong that the party
and his legal advisers are satisfied that, although he was obviously able to
give very material evidence as to the cause of the accident, he could not
benefit and might well, because of the facts know n to himself, damage his
case by giving evidence and subjecting himself to cross-examination.’
[49] The entitlement of the individual applicants to post -retirement medical aid
contributions subsidy of 70% is no lightweight matter. It is vital for their and
their dependants’ well-being. For them to elect not to come before Court and
testify, especially in an instance where their entitlement to this subsidy is
forthrightly denied by the Municipality , leaves one with no alternative but to
draw an adverse inference from such failure. I must make it plain that I am not
deciding this case purely based on the adverse inference I am drawing from
the failure by the applicants to testify. It is alleged that some of the applicants
were employed on various dates prior to 19 March 1999. The Municipality
denied this and persisted with its denial to the end. The question, therefore, is
whether, at the close of the applicants’ case , there is sufficient evidence to
sustain the claim that some of them were employed prior to 19 March 1999
and are thus entitled to the benefit flowing from the 1939 Ordinance. 28 What is
glaring in this matter is the absence of evidence to prove the dates of
employment for the applicants who are alleged to have been employed before
the repeal of the 1939 Ordinance. In my considered judgment, there can be
no finding in favour of the said applicants without evidence.29
[50] As for the rest of the individual applicants, they had to prove that when they
were employed after the repeal of section 79 bis(1) of the 1939 Ordinance by
either the Bronkhorstspruit Municipality or by Kungwini Local Municipality,
they were so employed on the same terms and conditions of employment
providing that the said local authorities would subsidise 70% of their post -
retirement medical aid contributions.
28 See: Naude NO v Transvaal Boot and Shoe Manufacturing Co 1938 AD 379 at p. 397.
29 In Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A) at p 576C - D, it was held thus: “Before it
gives judgment in favour of the plaintiff, the Court must be satisfied that, having regard to the
evidence as a whole, the plaintiff has prove d, on a balance of probabilities, his allegation … against
the defendant”.
17
[51] Instead of leading evidence on the pleaded case, the applicants went on a
tangent by calling two witnesses who basically testified on a ‘practice’ that
was allegedly adopted by the Bronkhorstspruit Municipality and /or the
Kungwini Local Municipality to perpetuate the purport of the repealed section
79bis(1) of the 1939 Ordinance.
[52] The applicants’ pleaded case made no reference to the alleged ‘practice’ as
being the basis of the ir claim. It was on this basis that it was advanced in
argument on behalf of the Municipality that the applicants must be kept strictly
within the four corners of their pleaded case and not be allowed to advance a
case based on an alleged ‘practice’, which was never pleaded by them.
[53] I would have no difficulty in upholding this valid argument if it was not for the
fact that the Municipality ’s counsel allowed the applicants ’ witnesses to lead
evidence on the alleged ‘practice’ , and even went on to cross-examine the
said witnesses on the alleged ‘practice’. In Medisa (Pty) Ltd v Kroebel Tools &
Products (Pty) Ltd30, Morris AJ dealt with a matter where the manner in which
the case was conducted by both of the parties went far beyond the narrow
issues which existed on a literal reading of the pleadings. He found that
neither party objected to the widening of the issues and accordingly dealt with
the matter in the manner in which it was presented before him.31
[54] In this matter, I have no hesitation in finding that such ‘practice’, if indeed it
existed, was nothing short of a mischievous subversion of the repeal of
section 79bis(1) of the 1939 Ordinance. It, therefore, cannot be countenanced
under a constitutional democracy governed by the rule of law.
[55] The provisions of section 79 bis(1) of the 1939 Ordinance were done away
with by virtue of the provisions of section 58 of the Rationalisation Act.
According to Voet (1.3.38), a law “is said to be repealed (abrigari) when after
30 1988 (4) SA 415 (W).
31 In his judgment, Morris AJ made reference to Shill v Mil ner 1937 AD 101 where De Villiers JA
referred to Wynberg Municipality v Dreyer 1920 AD 439, at which Innes CJ at p. 443 held: ‘ The
position should, of course, have been regularised by an amendment of the pleadings. That was not
done; but the defendant cannot now claim to confine the issue within limits which it assisted to
enlarge;…’ In E C Chenia and Sons CC v Lame & Van Blerk 2006 (4) SA 574 at p. 580F -G, it was
held thus: ‘ A part cannot be allowed to lull its opponent into a false sense of security by allowing
evidence in the trial court without objection and then argue at the end of the trial, or on appeal, that
such evidence should be ignored because it was inadmissible.’
18
being once full passed, it is totally done away with ”.32 As for the repeal of
section 79 bis(1) by the Rationalisation Act, there is high authority for the
proposition that “statute law is not … purposeless ”. There was an aim and
purpose behind inter alia the repeal of section 79bis(1) of the 1939 Ordinance.
It was set out in section 2 of the Rationalisation Act. In section 18, the
Rationalisation Act referred to the rationalisation of terms and conditions of
employment. Having repealed section 79bis(1), the Rationalisation Act did not
leave a vacuum. At section 19(1)(a), it was provided thus:
‘(1) Every municipal council –
(a) must provide access to a scheme or schemes which confer
medical aid benefits to all its employees including its retired
employees…’
[56] Under section 19(3), the Rationalisation Act provided that the scheme or
schemes contemplated in sub -section 1 and the rules, obligations and
benefits applicable to it, including rules pertaining to qualifications for benefits
of the contributions to be made by a municipal council or the beneficiaries of
the scheme or schemes, must be determined –
‘(a) where applicable, in accordance with the procedures specified in any
existing collective bargaining procedural agreement; and
(b) after consultation with all affected beneficiaries.’
[57] At section 19(4), the Rationalisation Act stated thus:
‘Any scheme or schemes established in terms of the Local Government
Ordinance, or any other applicable law or collective agreement which confer
medical aid benefits to the employees or councillors of a municipal council,
will continue to exist, and the rules, obligations and benefits applicable to the
scheme or schemes continue to apply unless, replaced or amended –
(a) in terms of this Act or any other law;
(b) in terms of its own rules; and
32 In R v Sutherland 1961 (2) SA 806 (A) at 815A-B, it was said a law is repealed if it “is totally done
away with by legislative act in any manner…”
19
(c) in accordance with the procedure contemplated in sub -
section (3).’
[58] The benefit rooted in the repealed section 79 bis(1) of the 1939 Ordinance
remained intact, not only by virtue of section 59(1) of the Rationalisation Act
but, also in terms of the provisions of section 12(2)(c) of the Interpretation
Act.33 In addition, the following provisions of section 19(4) (sic) of the
Rationalisation Act cemented the said benefit.
‘A replacement or amendment contemplated in sub-section (4) must not place
any employee or councillor in a position that is less favourable than that
position which existed prior to the replacement or amendment.’
[59] Based on the above, it is my considered finding that there was no room
whatsoever for the Bronkhorstspruit Municipality or Kungwini Local
Municipality to immortalise the provisions of section 79 bis(1) of the 1939
Ordinance under the guise of a so -called ‘practice’. Even if I am wrong in this
finding, I hold the view that the evidence tendered falls short of proving the
alleged ‘practice’.
[60] As to what constitutes a practice, Goldstone J expressed the view in
Marievale Consolidated Mines Ltd v President of the Industrial Court and
others34 that it was “…a customary or recogni zed device scheme or action
adopted in the labour field”.35
[61] In Trident Steel (Pty) Ltd v John NO and others36, reference was made to the
definition of the term ‘practice’ as it is found in the Shorter Oxford Dictionary.
The Court went on to hold that while the expression can unquestionably relate
to a continuing and repeated activity , it is clearly not restricted to such activity
and can apply to a single event.
33 Act 33 of 1957.
34 (1986) 7 ILJ 152 (T).
35 This definition was endorsed in Chemical Workers Industries Union v Indian Ocean Fertilizers (Pty)
Ltd (1988) 9 ILJ 1092 (IC) at 1098G -H and in National Automobile & Allied Workers Union (now
known as National Union of Metalworkers of SA) v Borg-Warner SA (Pty) Ltd (1994) 15 ILJ 509 (A) at
518H-I.
36 (1987) 8 ILJ 27 (W) at p. 40B-C.
20
[62] All that came from the evidence of the applicants’ two witnesses was their
mere ipse dixit that there was a ‘practice’ which carried on with the benefit
from the provisions of the repealed section 79 bis(1) of the 1939 Ordinance .
Their evidence did not go as far as to speak on the actual adoption or
implementation of the alleged ‘practice’ and the employees in respect to
whom the alleged ‘practice’ was adopted or applied.
[63] I am not satisfied , on the evidence they presented , that there was “…a
customary or recognised device, scheme or action adopted …” by either the
Bronkhorstspruit Municipality or Kungwini Local Municipality making it a
condition of employment for new employees to receive the claimed 70%
subsidy.
[64] When all is said and done, I have before me no evidence proving the
individual applicants’ entitlement to the claimed subsidy of 70% towards their
post-retirement medical aid contributions. I can only reiterate that there is no
evidence presented before me on when exactly each of the individual
applicants was employed.
[65] If there was evidence led, which proved that some of the individual applicants
were employed during the time the provisions of section 79 bis(1) were
applicable and part of our law, I would have had no hesitation in upholding
their claim, as pleaded, and in granting them the relief sought. Again I
reiterate that, w ithout evidence, I have no basis to find in favour of the
remaining applicants.
[66] As for the individual applicants employed after the repeal of section 79bis(1)
of the 1939 Ordinance, I have no evidence before me which proves that a
subsidy of 70% towards their post -retirement medical aid contributions was
part and parcel of their terms and conditions of employment.
[67] I have already expressed myself on the impossibility of the entitlement to such
a subsidy being rooted in the alleged ‘practice’ , especially on the face of the
purpose and other provisions of the Rationalisation Act . On a preponderance
of probabilities, the applicants have not succeeded in proving their alleged
entitlement to the relief they seek. All things considered therefore, the claim by
21
the 13 remaining applicants cannot succeed. It must fail for want of sustaining
evidence.
[68] With regard to costs, my own consideration of the law and fairness compel s
me to rule that there should be no order as to costs in this matter. The pursuit
of the matter by some of the individual applicants does not strike me as being
wholly unjustified. In my assessment, this case fails for lack of evidence and
not for it being manifestly destitute of merit.
[69] As for the previously reserved costs, the first applicant attained partial
success in respect of some of the individual applicants on 17 August 2021.
There is therefore no basis to mulch either of the parties with the costs
reserved on that day. With regard to the costs occasioned by the
postponement of the case on 6 October 2020, none of the parties can escape
the blame for the matter having been postponed. I say so as it was the parties
themselves that altered the number of days that were initially agreed upon for
the hearing of the matter in the minutes signed on 20 May 2019.
[70] Accordingly, I make the following order:
Order
1. The claim for subsidy towards post -retirement medical aid
contributions by the 13 remaining applicants is dismissed.
2. There is no order as to costs.
________________
N P Voyi
Acting Judge of the Labour Court of South Africa
22
Appearances:
For the Applicants: Adv G L van der Westhuizen
Instructed by: Tim Du Toit and Kei Inc. Attorneys
For the Respondent: Adv W R Mokhare SC
Instructed by: J L Raphiri Attorneys Inc.