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[2015] ZALCJHB 425
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Sedibeng District Municipality and Another v Shongwe (J712/15) [2015] ZALCJHB 425 (11 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: J 712/15
In
the matter between:
SEDIBENG
DISTRICT
MUNICIPALITY
First Applicant
YUNUS
CHAMDA
Second Applicant
and
NONTOMBI
INNOCENTIA
SHONGWE
Respondent
Dated:
11 December 2015
JUDGMENT
LALLIE
J
[1]
This
is an application for leave to appeal against the whole of the
judgment I handed down on 19 May 2015 in which I granted the
following order:
‘
1
The deductions made by the respondent from the applicant’s
remuneration
from August 2014 to February 2015 were unlawful.
2
The respondent is ordered to pay the applicant all the money deducted
from
her remuneration from August 2014 to February 2015 in the amount
of R52 240. 79. The respondent may make lawful deductions from
the
applicant’s remuneration.
3
The respondent is ordered to pay the applicant’s costs on an
attorney
and client scale.’
[2]
The application is opposed by the respondent. Initially, the
applicant sought to rely on two grounds; firstly, that I erred
in
focusing on the fact that the applicants made deductions from the
respondent’s salary which were greater than 25% and
ignored the
fact that the deductions were made by agreement between the parties.
The other ground is that I ought to have considered
the agreement
which was entered into between the parties whether it was by
implication or otherwise. In the submissions which the
applicants
referred to as the supplement, application for leave to appeal, the
applicants not only presented their submissions
but also added
further grounds for leave to appeal.
[3]
The respondent’s opposition is mainly that the pleaded case
before me concerned deductions from her remuneration which
were made
by the first respondent in contravention of
section 34
of the
Basic
Conditions of Employment Act 75 of 1997
as amended (“the
BCEA”). The deductions were made without the respondent’s
consent and some exceeded 25% of her
monthly remuneration. Even the
first applicant’s cash handling policy which the applicants
sought to rely on in justifying
the deductions does not enable it to
violate the BCEA in the manner in which the first respondent did.
Lastly, the respondent submitted
that the application stands to be
dismissed with costs as the applicants have no prospects of success
on appeal.
[4]
The applicants’ submissions that I erred in allowing the
respondent to dwell on the issue of the legality of the deductions
which were made in terms of the first applicant’s cash handling
policy which is binding on the respondent has no legal basis.
It
fails to take into account that the pleaded case before me was for
the reimbursement of deductions which were made unlawfully
in
violation of
section 34
of the BCEA. The submissions the applicants
sought to rely on do not support the applicants’ case that I
erred in finding
that the deductions were in breach of the BCEA. The
oral agreement between the first applicant and the respondent does
not assist
the applicants as the BCEA requires the agreement to be in
writing. The argument that the deductions less than 25% of the
respondent’s
monthly remuneration should have been found lawful
cannot be valid in the absence of the applicant’s written
consent that
those deductions be made.
[5]
The applicants’ argument that by adding the order that the
first applicant may make any lawful deductions from the respondent’s
remuneration to the order for the reimbursement of the deductions
which were made unlawfully, rendered the order contradictory
is
incorrect. The order clearly declares the deductions made between
August 2014 and February 2015 unlawful and requires the first
applicant to reimburse the respondent. The order advises the parties
that the first respondent retains the right to make deductions
from
the respondent’s remuneration. The deductions must, however, be
made lawfully.
[6]
The test for leave to appeal is whether the applicants have prospect
of success on appeal.
[1]
The
applicants have failed to prove their allegations that I made errors
in my judgment. In the absence of valid submissions that
I erred in
finding that the deductions the first applicant made from the
respondent’s remuneration of August 2014 to February
2015, the
applicants have no prospects of success on appeal. I could find no
reason for costs not to follow the result.
[7]
In the premises, the following order is made:
7.1
The application for leave to appeal is dismissed with costs.
_____________
Lallie, J
Judge of the Labour Court
of South Africa
Matter
is considered in chambers
For
the Applicant:
Suleman’s
Inc Attorneys
For
the Respondent:
JC Burger Attorneys
[1]
Lodewicus Adries Micheal Kruger v
The State 612/13 [2013] ZA (SCA)