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[2008] ZALAC 19
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Tafibra SA (Pty) Ltd v CEPPAWAWU and Others (JA 78/05) [2008] ZALAC 19 (31 July 2008)
24
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case
no: JA 78/05
In
the matter between:
TAFIBRA
SA (PTY) LTD
Appellant
AND
CEPPAWAWU First
Respondent
SANDILE
NKOSI & 12 OTHERS Second and further
Respondents
Judgment
TLALETSI
AJA
Introduction
[1]
On 19 March 2004 the first respondent, acting on behalf of the
second to further respondents, declared a dispute of unfair
discrimination based on race and colour against the appellant and
referred it to the Commission for Conciliation Mediation and
Arbitration (“CCMA”) for conciliation. The referral was
made in terms of sec 10(6)(a) of the Employment Equity Act
55 of 1998
(as amended) (“the EEA”). ON 04 May 2004 the dispute was
conciliated and remained unresolved. The respondents
filed their
statement of claim in which they alleged that of the five process
controllers who were employed by the respondent during
the month of
March 2003, those who were black received lower starting salaries
than the new white employees. On 26 July 2004 the
respondents served
a Notice of Amendment of the statement of claim. The effect of the
amendment was to allege that the pay differences
between the black
and white process controllers who were appointed in March 2003,
within a period of 9 days, constituted unfair
discrimination based on
race and colour or union membership. According to the respondents the
period of 9 days was calculated from
01 March to 10 March 2003. In
the pre-trial minutes of the meeting held on 01 September 2004 the
parties recorded that the issue
as to whether the salary
differentials amongst new recruits who were employed between 10 March
2003 and June 2003 and other process
controllers (already employed)
amounted to unfair discrimination based on race, colour or union
membership was in dispute between
the parties.
[2]
Pursuant to the trial, Ngcamu AJ, who presided over the trial,
found that the respondents had not proved a case of discrimination
on
the basis of race or colour but that they had proved discrimination
based on union membership.
[3]
For the sake of convenience, the second and further respondents will
henceforth be referred to herein as the employees.
Factual
Background
[4]
The appellant operates a particle chip-board manufacturing plant at
Panbult. Panbult is situated in a remote area between Ermelo
and Piet
Retief. The plant is 60 Kilometres from Ermelo. The process of
manufacturing this product is rather highly technical.
It is a fully
water-driven process which is done through a computerised system.
Process controllers operate from a central point
and are responsible
for, and operate, the computerised system so as to ensure that a
quality product is produced. Process controllers
control the entire
manufacturing system.
[5]
The plant is a continuous operation. It operates 24 hours a day and
seven days a week. The process controllers were divided
into shifts.
When recruiting the first group of process controllers, the appellant
looked for individuals with experience as well
as individuals who had
some form of tertiary qualification. The latter were believed to be
people who would be able to assess the
information, think on their
feet, grow with the organisation and be able to be trained in the way
the appellant wanted to operate.
Those who had experience were
perceived to be able to prevent and solve problems quickly based on
their experience in the ‘process
driven’ environment.
[6]
It is common cause that during 1999 the appellant recruited few
people who were employed by a competitor in the locality.
Most of the
recruits came from outside areas such as Nelspruit, Tzaneen and
Pretoria. The appellant managed to appoint eleven employees
of whom
six were African, three white and two of Indian origin. Most of these
recruits were sent overseas for intensive training
in the process of
manufacturing particle chip-board.
[7]
When the plant was started the appellant established two different
starting salary levels for process controllers based on
experience
and qualifications. Process controllers with no tertiary
qualifications but extensive experience or had tertiary qualification
and adequate experience would be at a higher salary level than
process controllers who had tertiary experience but no experience
at
all or with no tertiary qualifications and little experience would be
paid at a lower salary level. According to the appellant
it did not
matter from what industry the person gained experience, as long as
they worked in that environment. Process controllers
in the first
level earned R5200-00 and those in the second level earned R4500-00.
Because of the grading system, salaries remained
unequal amongst
process controllers, notwithstanding annual increases. This situation
had existed since the inception of the appellant’s
business in
1999.
[8]
More process controllers were employed as the years went by. By 01
January 2003, four different salary levels existed amongst
process
controllers. They were graded at their respective salary levels
according to their length of service and experience in
a process
driven environment as well as their qualifications. As at January
2003 the only process controller who was at salary
level one was J
Rhoode, a coloured man and non-union member who later resigned on 31
January 2003. With the exception of Mr T.
Shongwe who was appointed
on 01 March 2004 at level 4, and Messrs Madonsela, Mavundla, Sibeko,
and T Shongwe (being 4 of the second
to further respondents) who were
appointed on 01 March 2003 at level 4, the eight remaining second to
further respondents, were
respectively employed at salary levels 2
and 3. P. Smook, a white process controller who was a union member
was employed at level
2 at the time. He was dismissed from the
appellant’s employ on 10 September 2004. He is however not one
of the respondents.
[9]
During 2000, the first respondent demanded to be accorded
organisational rights by appellant. This led to the conclusion of
an
interim recognition agreement between the appellant and first
respondent. The first respondent was recognised as a bargaining
agent
of all its
bona fide
members within several job categories,
including, process controllers. This agreement applied also to the
appellant’s other
plants at George and White River. Not all
process controllers at the Panbult plant joined the union. Those who
did not join the
union fell outside the scope of the bargaining unit.
[10]
The practice at the appellant was to have salary negotiations between
the first respondent and the appellant during the month
of July every
year. July became the month in which union members received salary
increases. Those employees falling outside the
bargaining unit
received their salary increment during January each year.
[11]
It is not disputed that over the years preceding February 2003, the
appellant had experienced high staff turnover amongst process
controllers. According to Mr Johannes Marthinus Fourie (“Fourie”),
the Human Resources Manager at the appellant since
May 2001, the
experienced process controllers left the appellant’s employment
due to factors such as lack of employment benefits
offered by the
appellant, the remoteness of Panbult plant and lack of social
activities in the surrounding towns. These problems
made it difficult
for the appellant to retain younger individuals who had not relocated
with their families to the area.
[12]
Of the appellant’s complement of 12 process controllers as at
March 2003, four of the twelve had no experience. They
were
Madonsela, Mavundla, Sibeko and L. Shongwe. Two of the twelve had no
tertiary qualifications but had little experience. These
two were
Motha and Ngwenya. Four had adequate experience of between 2 and 5
years. They were Mathekga, Nkosi, Letsosa and Xaba.
Only two had
extensive experience of more than 5 years. They were Dlamini and
Smook.
[13]
By the end of February 2003, there were only eight process
controllers left in the appellant’s employment. This number
was
insufficient for the team required for a plant that ran on a
continuous basis. As at 01 March 2003 at least 4 black trainees
had
become qualified through the process of
“internal-on-the-job-training”. The appellant still ran
short of four
more process controller on its ‘task force’
and had no further candidates suitable for internal promotion.
[14]
Despite advertising the vacant positions in the local and surrounding
areas, the appellant was unable to attract suitably qualified
and
experienced candidates to enhance productivity and efficiency. For
these reasons the appellant embarked on a recruitment drive.
It
advertised the vacant positions within the Vaal Triangle. After
conducting the interviews in the area, the appellant identified
three
candidates who, according to Fourie, were extensively experienced.
These were Nel, Roberts and Jordaan. Because of their
extensive prior
experience as qualified process controllers in a process-driven
environment, they were all appointed on salary
level one. They were
all white males. Nel was appointed on 10 March 2003, Roberts on 17
March 2003 and Jordaan on 01 May 2003.
They did not join the first
respondent.
[15]
The three new recruits were each offered a starting salary of
R6400-00. They accepted the offer and relocated with their immediate
families to the surrounding towns. As at 01 March 2003, the highest
paid process controllers at Panbult were Dlamini, Mathekga,
Xaba and
Smook (the first three African and the last one Coloured) and were
each on level two earning R5767-60. There was no employee
who was on
level one. This has been the situation since the resignation of
Rhoode on 31 January 2003. To explain why the new recruits
were
offered higher salaries than normal entry salary for the level in
which they were appointed, Fourie testified that the salary
that was
being paid to Dlamini, Mathekga, Xaba and Smook (all of whom were not
on level one), was not attractive enough to persuade
the new recruits
to relocate to the local area surrounding Panbult plant and to accept
employment at the appellant. The pay package
offered to them was,
therefore, increased in order to attract them to take up employment
with the appellant for economic reasons.
To arrive at the figure
offered, Fourie testified that they took the current highest salary
payable and added to it 11% thereof
which was an anticipated annual
increase to be agreed upon with the union during July negotiations.
They further anticipated that
during July 2003 any difference would
then be ‘equalised’ with the high level earners in that
category.
[16]
On 16 June 2003, another white process controller, namely J Potgieter
was appointed to replace Roberts who resigned only one
month after
his appointment in March 2003. Potgieter was appointed in level one
at a monthly salary of R6400-00. An investigation
which was conducted
after this dispute had been referred to the Labour Court and during
preparation for trial revealed that Potgieter
was appointed at the
wrong salary level as he did not have the required level of
experience and tertiary qualification. In explaining
the discrepancy
Fourie testified that line management merely asked the Human
Resources Officer to effect the appointment of Potgieter
without
either highlighting his level or his salary. It seems that as he was
replacing Roberts, there was an assumption that he
would be at the
same level at which Roberts had been and get the same salary.
[17]
It is common cause that during July 2003 annual salary negotiations
took place as expected. The first respondent tabled a demand
for a
wage increase of 15%. The evidence by Fourie was to the effect that
the appellant’s management had approached the negotiations
on
the basis that the union would not be prepared to agree on an
increase that would be lower than 11% and, for that reason, they
had
been prepared to reach agreement with the union for 11% increase.
However, it was ultimately agreed upon 9% and not 11% as
was
anticipated by the management of the appellant. In addition to the 9%
salary increase, a settlement bonus equal to 12% of the
annual salary
was also agreed upon. This effectively meant that for that year the
union members received an increase of 10%. However,
as from July 2003
the monthly salaries of union members were therefore only increased
by 9%.
[18]
The appointment of the three new white recruits resulted in pay
differences among process controllers at Panbult plant. It
is common
cause that the difference in salaries
per se
was not an
unusual situation at the appellant. As non-union members were
individually assessed on merit for increment and whilst
union members
were given the increases that the union had bargained for on their
behalf, union and non-union members did not always
receive the same
percentage of a salary increase. There were also salary differences
within non-union members themselves. The evidence
tendered on behalf
of the appellant which was not disputed by the respondents revealed
the following factual historical situation
about salary increases.
During January 2001 non-union members received 7% increament whereas
union members were, in addition to
what was given to non-union
employees, given 3.5%. This meant that union members got a salary
increase of 10.5%; during the year
2002 non-union members received 7%
increase and wage negotiations with the union settled at 8.5% for the
union members. For the
year 2004, non-union employees received 6%
plus a further 1.5% increase effective 01 January 2005. What had
caused the disparity
in salaries for the year 2003 among process
controllers was, therefore, the high starting salary given to new
recruits, who happened
to be classified as white, and the negotiated
salary increment of 9% for union members.
[19]
The evidence tendered by the appellant to justify why the new
recruits were offered high starting salary is that of
economic/commercial
reasons that had arisen as a result of the
workplace and operational requirements of the appellant, the state of
the employment
market preceding their appointment and the locality of
the appellant’s business. As pointed out earlier on, the
appellant’s
evidence was that it needed four experienced
process controllers. It had already exhausted the internal pool of
those who could
be trained. Furthermore, there were no process
controllers left within the area surrounding Panbult. Having
identified the three
candidates from the Vaal Triangle, the appellant
resolved to increase the pay package applicable to process
controllers to motivate
them to relocate with their immediate
families to the Panbult area with the ultimate goal of retaining
their skills and enhancing
production. The appellant’s evidence
was that the differentiation in salaries had nothing to do with race
or union membership
but pure economic/commercial operational
requirements prevailing at the plant at the time. Fourie testified
further that the three
new white employees were also appointed with a
condition that they would not receive any salary increment for that
year.
[20]
As regards the disparity between the 9% and 11% increases, Fourie’s
evidence was that although they anticipated that
the salary
negotiation would lead to an 11% agreement, they had managed to
settle at 9% plus bonus and that the union members received
what they
bargained for. This, according to Fourie, had nothing to do with
discrimination based on union membership.
[21]
Mr Baloyi Mweza, the union official who was employed by the first
respondent, testified that he had no knowledge of the operations
at
the appellant. He also had no knowledge of the experience of the
white appointees. His evidence related to his participation
in the
salary negotiations which is common cause. The rest of his evidence
is what he was told by his union members which did not
take the
matter anywhere. It was not admissible and should not have been
admitted. The only evidence tendered to support the discrimination
claim was that of Samuel Sibeko (“Sibeko”), Sandile Nkosi
(“Nkosi”) and Fraser Mathekga (“Mathekga”),
all of whom are some of the respondents herein. The relevant part of
their evidence can be summarised hereunder.
[22]
Sibeko testified that he was employed at Panbult plant during 1999 as
a press operator. He started training as a process controller
in 2001
and was appointed process controller on 01 March 2003 at level four
after being evaluated. His starting salary was R5153-00
per month. He
compared himself to Potgieter who was appointed after him at a
starting salary of R6400-00 without having any experience
and
qualifications. He also said that his period of training for 24
months as process controller was too long as Potgieter did
not go
through that lengthy training. Sibeko conceded that people who
already had experience and higher qualifications were supposed
to be
paid higher salaries irrespective of their race. He testified that
the discrimination complaint was lodged with the respondent
during
May 2003. He, however, only raised his grievance thereafter when he
discovered that Potgieter was earning more than him.
He personally
had no complaint against Nel, Roberts or Jordaan.
[23]
Nkosi testified that he was employed at the appellant on 17 January
2000. He held a National Diploma in chemical engineering
and had no
relevant experience. He was appointed on level three. He believed
that he was supposed to have been appointed at level
one. He said
that he was discriminated against when he compared himself to
Potgieter. He testified that he had to train Nel who
was one of the
newly appointed employees. It was put to him under cross-examination
that it was not really training but orientation
for Nel−who
was already a qualified process controller−on the specific
operations peculiar to the appellant’s
plant. He conceded that
he had no problem if a person with relevant qualifications and
experience was appointed at a higher level
than him irrespective of
his race. He further conceded that, because of the salary structure
at the appellant, there had been periods
in the past when blacks had
earned more than non-union members. Nkosi testified further that he
also resided at Ermelo and was
travelling daily with Nel to Panbult.
Nkosi conceded further that an experienced person from outside had to
go through a process
of acquainting himself, with the process at
Panbult in order to function “individually” as a process
controller.
[24]
Mathekga testified that he had a National Diploma in chemical
engineering. He had previously worked at Impala Refineries and
had
later moved to Springs. He said that when he was appointed at the
appellant, his qualification and 18 months experience was
taken into
account even though it related to a different industry. He attended
training in Europe for three months for him to acquire
the right
skills for his work. He also testified that he did not know of the
existence of levels and gradings at the appellant
but he was aware
that there were process controllers who earned more than he did.
Proceedings
in the Labour Court
[25]
The Labour Court rejected the justification advanced on behalf of the
appellant that it needed to attract suitably qualified
and
experienced process controllers and to retain them. The Labour Court
reasoned that the appellant’s justification assumed
that the
black process controllers did not require higher salaries for their
retention. The court remarked that the new white recruits
came from
the same area where the others came from. This reasoning did not take
into account the fact that the starting salary
was used to induce new
recruits to accept appointment and be retained at the appellant’s
plant. With regard to the 11% increment,
the Labour Court reasoned
that it was common cause that union members received the same or
higher salaries than employees who were
non-union members and that it
was only in July 2003 that the salaries were not “levelled”.
The court held that the
appellant’s failure to adjust the
salaries by 11% could not be justified on the reasons provided on
behalf of the appellant.
With regard to the position of Potgieter,
the Labour Court accepted the explanation on behalf of the appellant
that his appointment
on level one was a mistake which was only
discovered during the preparation of the case for trial and that such
an explanation
was given in good faith.
[26]
The Labour Court, in conclusion, held that the three new recruits,
Nel, Jordaan and Roberts, qualified to be appointed on salary
level
one on the basis of their qualifications and experience and was
unable to find any fault on the appellant giving the new
recruit 11%
more in anticipation that the salaries would be “levelled”
during the salary negotiations. The Court however
issued a
declaratory order to the effect that the differentiation in salaries
amongst process controllers constituted unfair discrimination
based
on union membership and also ordered that their salaries be adjusted
by an amount equal to 2% representing the difference
between the 11%
and 9% the two groups received respectively, to be calculated from
July 2003 to the date of the order.
The
appeal
[27]
The appellant’s appeal lies against that part of the judgment
in terms of which the Labour Court declared that the differentiation
in salaries amongst the process controllers constituted unfair
discrimination based on union membership and the orders flowing
therefrom. The cross-appeal by the respondents is against that part
of the judgment wherein the
court
a quo
found that
cross-appellants
(Applicants
a quo)
failed to
prove that there was racial discrimination. The appellant sought and
obtained leave from the Labour Court to appeal against
that part of
the order that is not in its favour.
[28]
The respondent’s claim is that the disparity in salaries
amounts to unfair discrimination in terms of section 6(1) of
the EEA.
Section 6(1) of the EEA provides that:
“No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on
one or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnicity or social origin,
colour, sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and
birth”
In
terms of sec 5 of the EEA every employer is enjoined to take steps to
promote equal opportunity in the work-place by eliminating
unfair
discrimination in any employment policy or practice. Section 1
defines employment policy or practice as including
,
inter alia,
recruitment
procedures, advertising, selection criteria, appointment and
appointment process, etc.
[29].
The facts of this case make the discussion of the test laid down by
Goldstone J
in
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA
300
(CC) unnecessary in dealing with the parties’ dispute. The
dispute is more factual and is based on common cause facts.
[30]
I will firstly refer to the pleadings in order to establish the real
dispute that was referred for conciliation. This is necessary
because
the respondents tendered evidence at the Labour Court which was not
foreshadowed in their claim as pleaded. This conduct
had the effect
of obscuring the real issues that were to be determined.
[31]
In the statement of claim, the respondents stated the following at
paragraph 6 thereof:
“
6.1 The respondent
appointed 5 (five) process controllers in the same month, precisely
within a period of 9 (nine) days. Two of
them are black and they are
employed at a salary which is R1206-25 less than their white
associates. The first Applicant submits
that this is unfair
discrimination based on race and colour.”
On
the 27 July 2004, the respondents filed an amendment of paragraph 6.1
of the statement of claim by adding the words “or
union
membership”. This amendment had the effect of extending the
grounds of discrimination to include union membership.
[32]
It is common cause that before the above amendment was effected, the
appellant served and filed pre-trial questions. This was
on 21 July
2004. In the pre-trial questions the appellant required the
respondents to,
inter alia
, identify the three white employees
allegedly employed as process controllers on 10 March 2003, and to
specify the dates applicable
to the 9 (nine) days referred to in
paragraph 6.2. In reply, the respondents named G.Nel, W. Jordaan and
J. Potgieter as the three
white employees. The period of 9 (nine)
days was identified as between 01 March 2003 and 10 March 2003. Of
note is the fact that
Potgieter was not yet employed during this
period as he was only appointed on 1 June 2003 to replace Roberts who
was appointed
on 17 March 2003 and resigned a month later.
[33]
During the 5
th
and the 7
th
October 2002, the
parties signed a pre-trial Minute. In the minutes the parties
recorded one of the facts in dispute
to be
“that the
salary differentials amongst the new recruits who were employed
between 10 March 2003 and June 2003 and other process
controllers
amounts to unfair discrimination based on race, colour or union
membership.”
The parties further recorded that one of the
issues to be decided was
“whether the salary differentials
between the white process controllers, being the new recruits who
were employed between
10 March and June 2003 and other Process
Controllers, amounts to unfair discrimination based on race, colour
or union membership
.”
[34]
The evidence presented revealed that in the past union and non-union
members received different pay increases. This aspect
was conceded by
the respondents during trial. The salary increases were based on
different processes that were followed. The process
was to negotiate
with the union for the salary increases for its members and increases
for non-union members were based on merit.
Furthermore, factors such
as qualifications and experience contributed to the salary
differences. There is no evidence to suggest
that the policy was used
to disadvantage the respondents. Although there may have been an
attempt by Nkosi to suggest that he trained
Nel to do the work of a
process controller, it can be accepted that there was no basis to
suggest that the new white recruits did
not deserve to be placed on
level one. It is common cause that the black process controllers were
on level two and none of them
was on level one. It was not the
respondents’ case that the appellant had unfairly failed to
place the black process controllers
on level one whilst the white
process controllers were placed on level one. Therefore, the
situation is that for all intends and
purposes this is a case where
new white recruits were placed on a higher level and the process
controllers who had been in the
employ of the appellant were on lower
levels. That being the case, it is not surprising that level one
employees were paid higher
salaries than those on lower levels. That
means that, subject to what I will say about the case of Potgieter
below, for all intends
and purposes the conduct of the employer to
pay new recruits higher salaries than others cannot be found to have
been unfair in
any one of the grounds provided in sec 6(4) of the
EEA.
[35]
With regard to the claim by the respondents that they did not receive
the same salary increases pursuant to the wage negotiations
in July
2003 as the aggregate increases that had been awarded to all
employees outside the bargaining unit in January 2003, it
must be
accepted that what the union members got was a result of a collective
bargaining. The respondents cannot be heard to deviate
from what they
have bargained for. The respondents only discovered much later that
they had bargained for less than what was paid
to non-union members.
Furthermore, this claim is not part of the dispute that was referred
for conciliation.
[36]
I have referred above to the fact that the employees also complained
that Potgieter, one of the white process controllers,
was paid a
higher salary than they were paid despite the fact that he did not
have better qualifications or longer experience than
them. The
appellant’s response to this complaint was two-fold. First, it
submitted that comparing what Potgieter was paid
to justify the
employees’ complaint fell outside the dispute that was referred
to the CCMA for conciliation and could, therefore,
not be relied upon
by the employees in support of their claim. Second, the appellant
explained that the rate at which Potgieter
was paid was a result of a
mistake on its part. The appellant pointed out that the mistake was
that it placed Potgieter on a higher
rank than he should have been
placed. The appellant admitted in effect that Potgieter should not
have been receiving the higher
salary that the employees complain
they, too, should have been getting but he should have been on a
lower rank and receiving a
lower salary.
[37]
With regard to the appellant’s first answer, the position is
that when, the employees and the union referred their dispute
to the
CCMA for conciliation, they complained that they, being black process
controllers, were paid, a lower salary rate than the
rate at which
the appellant paid white process controllers who were employed during
March 2003. It is common cause that Potgieter
was not employed during
that period. It was only during the union’s preparation for
trial in the Court
a quo
that they sought to rely on Potgieter
to justify their complaint. It seems to me that the appellant’s
first answer to the
union’s reliance upon Potgieter’s
salary has merit. The dispute that the respondents referred to the
CCMA for conciliation
was not about whether or not the appellant’s
conduct in paying black process controllers a different and lower
salary than
white process controllers constituted unfair
discrimination but it was whether or not the appellant’s
conduct in paying the
black process controllers employed at a certain
period at a lower rate than the rate at which it was paying white
process controllers
which had been employed during a certain and
specific period constituted unfair discrimination. Since Potgieter
fell outside that
category of process controllers, his salary rate
could not be relied upon to support the complaint that was referred
to the CCMA
for conciliation and later to the Labour Court for
adjudication.
[38]
Despite the finding I have made above with regard to the respondents’
reliance upon Potgieter’s salary rate to
support their claim, I
am of the view that, if the appellant’s explanation for him
being paid at a higher salary rate is
a genuine and true explanation,
the appellant should correct the mistake. One way of doing that would
be to secure his consent
to being put on the rank on which he should
have been put in the first place which will obviously mean a
reduction in salary and
arrange for a repayment in one way or another
of the undeserved portion of his salary that had been paid to him
over the relevant
period. If he does not co-operate, the appellant
can consider whether his refusal does not mean that consideration
should be given
to dismissing him for operational requirements, after
a consultation process contemplated in sec 189 of the Labour
Relations Act,
1995 (Act 66 of 1995) if such consultation process
fails to produce an agreement between the parties.
(see: Fry’s
Metals (PTY) LTD v National Union of Metalworkers of SA & others
(2003) 24 ILJ 133 (LAC) at 147A−148I:
[2003] 2 BLLR 140
at
151F−153D)
[39]
Should the appellant fail to deal satisfactorily and decisively with
the Potgieter issue, it may well find that the respondents
may begin
to reject the appellant’s explanation that Potgieter being paid
at a higher salary rate than the second and further
respondents was a
genuine mistake and the consequences may not be worth risking.
[40]
In my view the appeal should succeed and the cross-appeal should
fail.
[41]
What remains is the issue of costs. I am of the view that the
requirements of the law and fairness dictate that no order should
be
made in this matter as to costs.
[42]
In the result, it is ordered as follows:
The
appeal is upheld.
The
decision of the Labour Court is set aside.
The
cross-appeal is dismissed.
There
is no order as to costs.
________
Tlaletsi
AJA
I
agree.
________
Zondo
JP
I
agree
________
Waglay
JA
For
the Appellant: Mr A Maier
Instructed
by: Lapin Attorneys
For
the Respondent: Mr WR Mokhare
Instructed
by: Sihali Molefe Inc
Date
of judgment: 31/07/08