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[2012] ZALCJHB 77
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POPCRU obo Moyo v Minister of Correctional Services and Another (J1926/12) [2012] ZALCJHB 77; (2013) 34 ILJ 992 (LC) (6 August 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Case
no: J 1926/12
In the matter between:
POPCRU obo H B MOYO
Applicant
and
MINISTER OF CORRECTIONAL SERVICES
First Respondent
NATIONAL COMMISSIONER OF CORRECTIONAL SERVICES
Second Respondent
Heard
:
03 August 2012
Delivered
:
06 August 2012
Summary:
(Urgent interdict – unlawful deductions for a
debt – prescription).
JUDGMENT
LAGRANGE, J
Introduction
The applicant employee was involved in an accident in a vehicle
belonging to the respondent in 2004. As a result of the accident,
the respondent suffered damages of some R 40, 0000-00. The
respondent has been deducting approximately R 1,100-00 of the
applicant’s
salary since January 2012, to recover the amount
of the loss for which it holds the applicant liable.
The applicant has never accepted liability for the loss nor has any
court found him liable for the damage to the respondent’s
vehicle. It was only in July 2010, after a number of internal
recommendations had been made that the loss be written off, that
the
Respondent’s Chief Financial Officer decided that the
applicant should be held accountable for the whole amount. In
January 2012 the Respondent started making deductions.
What brought matters to a head was a letter received by the
applicant on 25 July 2012, announcing that the respondent intended
deducting 70 % of his service bonus payable in August 2012 to reduce
the debt.
The union had already launched a separate application in March this
year to set aside a financial circular issued by the respondent
in
terms of which it announced its intention to offset 70 % of service
bonuses and merit awards to reduce the outstanding debt
of
correctional services staff. However, the incidence of deductions
made pursuant to the circular will obviously vary according
to when
an individual official is due to receive such bonuses and the value
of their alleged debt.
As things stand, the respondent will proceed to make the deduction
this month from the applicant. It was not disputed that the
deduction will amount to 35 % of the applicant’s total
remuneration due to him in August.
Section 23 of the Basic Conditions of Employment Act, 75 of 1997
(‘the BCEA’) states:
“
(1) An employer may not make any
deduction from an employee’s remuneration unless –
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.”
The planned deduction will exceed 25 % of the employee’s
remuneration for the month, thereby clearly breaching ss 23(2)(d)
of
the BCEA. The respondent has not provided any evidence that the
deduction in August satisfies the requirements of ss 23(1)(a)
or (b)
either. The latter subsections apply equally to the monthly
deductions made from the applicant’s remuneration since
January 2012.
The applicant claims that not only are the deductions in breach of
the abovementioned provisions of the BCEA, but the debt which
the
respondent is proceeding to recover by way of deductions has
prescribed.
In terms of s 11(d) of the Prescription Act 68 of 1969 (‘the
Prescription Act&rsquo
;), an ordinary debt prescribes after three
years.
The respondent says that it did not have knowledge of the driver of
the other vehicle involved in the accident at the time it
occurred.
The respondent’s CFO who deposed to the respondent’s
answering affidavit rightly states that, “...a
debt , whether
contractual, delictual or arising otherwise is not deemed to be due
until the creditor has knowledge of the debtor
and the facts giving
rise to the debt.”
Section 12
of the
Prescription Act provides
that:
“
12. When
prescription begins to run.
—(1) Subject
to the provisions of subsections (2), (3), and (4), prescription
shall commence to run as soon as
the debt is due.
(2) If the debtor wilfully prevents the creditor from
coming to know of the existence of the debt, prescription shall
not
commence to run until the creditor becomes aware of the existence of
the debt.
(3) A debt shall not be deemed to be due until the
creditor has knowledge of the identity of the debtor and of the facts
from which the debt arises: Provided that a creditor shall be deemed
to have such knowledge if he could have acquired it by exercising
reasonable care.”
While the legal proposition is correct, the respondent does not
explain why it was only in 2010, that the applicant’s
liability became clear. From the supporting documents there is
nothing to suggest that the respondent knew anything more in 2010,
when it decided to hold the applicant liable, than what it knew in
2005. It certainly makes no allegation of what information
it only
acquired in 2010, that enabled it to establish the applicant’s
liability to its satisfaction. It also does not
explain why it could
not have acquired such information by exercising reasonable care.
In the circumstances, the respondent has no defence to a claim of
prescription in respect of the principal debt. Likewise, even
if the
question of the debt having prescribed were ignored, the respondent
provides no defence to the claim that it is acting
in breach of
ss
23(1)
of the BCEA in respect of both the monthly deductions and the
planned 70 % deduction in August. It also has no answer to the claim
that the August deduction will breach
ss 23(d)
of the BCEA.
Consequently, the applicant has demonstrated a clear right not to
have any deductions made in respect of the alleged
debt.
The respondent argues, with justification, that the applicant has
known about the ordinary deductions since January and that
the union
was aware of the planned 70 % deduction since the circular was
issued in March. Mr Ramawele, for the respondent did
agree that the
union would not necessarily have known about the deductions faced by
each particular member, so it would not necessarily
have known about
the applicant’s August deductions earlier.
However, the applicant has demonstrated a clear right not to have
the deductions imposed and even though he could recover the
unlawful
deductions in due course through the mechanisms of the BCEA, there
is no reason for the court not to prevent future
deductions being
made, as there is no dispute about the fact that they would be
unlawful.
In respect of the deductions made from January to July 2012, since
there is no serious dispute of fact, there is no good reason
not to
dispose of the dispute over those deductions at the same time
thereby avoiding both parties incurring unnecessary costs
in the
future and taking up the court’s time with a matter on which
the merits have already been determined.
Order
In the light of the above, I find that the debt incurred by the
respondents as a result of the conduct of the applicant arose
no
later than 2005 and accordingly prescribed no later than 31 December
2008;
It is ordered that:
The respondents must repay the applicant the aggregate sum of all
the monthly amounts of R 1,136,82 already deducted from his
monthly
salary since January 2012, within 30 days of the date of this
judgment.
The respondents are interdicted and restrained from making any
further deductions from the applicant’s remuneration in
respect of the aforesaid debt with immediate effect.
The respondents must pay the costs of the application including the
costs of counsel.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: J L Basson instructed by Grosskopf Attorneys
RESPONDENTS: R P A Ramawele instructed by the State Attorney