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[2017] ZALCJHB 48
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Mpanza and Another v Minister of Justice and Constitutional Development and Correctional Services and Others (JS708/14) [2017] ZALCJHB 48; (2017) 38 ILJ 1675 (LC); [2017] 10 BLLR 1062 (LC) (31 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Reportable
CASE
NO.: JS 708/14
In
the matter between:
DANIEL
SIPHIWE MPANZA
First
Applicant
JACQUELINE
MATSHIDISO
Second
Applicant
And
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT AND
CORRECTIONAL
SERVICES
First
Respondent
THE
DIRECTOR-GENERAL FOR THE
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT AND
CORRECTIONAL
SERVICES
Second
Respondent
THE
ACTING CHIEF LITIGATION OFFICER
FOR
THE DEPARTMENT OF JUSTICE &
CONSTITUTIONAL
DEVELOPMENT &
CORRECTIONAL
SERVICES
Third
Respondent
Heard:
9 September 2016
Delivered:
31 January 2017
Summary:
Breach of contract – applicants’ alleged failure to
tender their services - alleged unlawful salary deduction
-
evidence
led by the parties mutually destructive – factual finding
entails
the balancing of probabilities and selecting one conclusion which
seems to be the more natural or plausible – applicants
failed
to tender services – deductions lawful.
JUDGMENT
CELE
J.
Introduction
[1]
The Applicants seek an order declaring the deductions made by the
Respondents' Department, the Department, against the Applicants'
remunerations to be not in compliance with the provisions of Section
34 of the Basic Conditions of Employment Act
[1]
read
with Section 34 of the Public Service Act
[2]
and consequently unlawful. The Applicants also seek an order for the
repayment of the monies deducted, with interest and costs
of the
application.
This
matter essentially turns on whether the applicants reported for duty
at the period for which deductions were made.
[2]
The
respondents opposed the claim and contended that the applicants were
not entitled to remuneration because the applicants were
not
reporting for duty at the material times and that therefore the
corresponding duty to pay remuneration did not apply. The respondents
contended that in view therefore the Department became entitled to
apply the no-work - no-pay - no benefit principle against the
applicants.
Factual
Background
[3]
The
Applicants were appointed in the Department in 2009 as Senior State
Advocate and State Advocate respectively, in accordance
with the
provisions of Section 9 of the PSA. Their terms and conditions of
employment with the Department were in terms of the
PSA, the Public
Service Regulations, 2001 and other related legislations. They were
appointed in terms of written contract of employment
in the
Directorate: Civil Litigation Unit ("the CLU") within the
Branch of the Office of the Chief Litigation Officer,
headed by the
third respondent, Ms Mohubi Onicca Phahlane. Their immediate
supervisor was Mr Vincent Selemela Mahwai who reported
directly to Ms
Phahlane. The Applicants' responsibilities and/or duties involved
primarily practising in accordance with the laws
and rules governing
practising advocates in the Republic. In simple terms they were
in-house counsel representing the Department
in court litigation upon
briefings of the State Attorneys. They used the same office building
in Pretoria as their supervisor,
Mr Mahwai but he was on the fourth
floor and they were on the first floor.
[4]
At times relevant to this matter there were 11 to 14 advocates,
including the two applicants in the in-house representation.
Clause
1.2.4 of the contract of employment of the first applicant provided
that the employee might be required to perform other
duties or to
work at other places that might reasonably be required by the
employer. Under 1.4.2 of the contract of employment
of the second
applicant, the Department reserved the right to recover any amount
with which she might be overpaid as a result of
erroneous
calculations, breach of a contract and leave without pay from her
salary or from any other monies to which she might
be entitled.
[5]
On 11 October 2010 the third respondent’s predecessor stopped
the in-house representation thus disbanding the unit. That
left all
advocates with no properly defined work to do. They were
instructed to render assistance in the unit and this continued
for
quite some time. On August 2013 Ms Mohubi and Mr Mahwai held a
meeting to discuss the future role of the in-house advocates.
Mr
Mahwai was instructed to discuss with various heads of other units
within the Department to find places where the 14 advocates
could be
accommodated. There were about five units, including the Labour
Relations, the Contracts Management, Law Enforcement and
the
Prosecution (NPA). The move to these units could include a transfer
of the budget from Mr Mahwai to that unit which accepted
an advocate.
On 2 September 2013 he then met the advocates, as a group and also
individually discussing possible permanent transfers,
interim
arrangements and employee/employer relations. He offered them
positions as were given to him by the heads of the
other units. Many
concerns were raised by the advocates, including the procedure
adopted for their proposed move to other units.
One head of a unit
insisted that the advocates to be considered for his unit had to
undergo a competency test to determine their
suitability to the
available posts. That was one of the concerns of the advocates. He
gave them time to discuss the concerns among
themselves. The
advocated suggested other units to which they could be moved,
including the Anti-corruption unit within the Public
Service
Administration, Legal Aid and being appointed as Acting Magistrates.
[6]
Various places were found for these advocates and they accepted the
move. Tentative places were found for the two applicants
and Mr
Mahwai held meetings with them. The first applicant was told of a
move to the Office of the Chief Litigation Officer as
a Director. An
appointment was arranged for the first applicant to go and meet with
Ms Phahlane. He went to meet her. She was not
present in her office
as she had gone to attend to a matter involving the South African
Police (SAP). On 17 September 2013 Mr Mahwai
issued an electronic
mail (email) letter to the first applicant in which the applicant was
being placed with immediate effect to
the office of the CLO under
supervision of Ms Phahlane. He was to assist in that office
temporarily pending a permanent transfer.
He did not report back at
Ms Phahlane’s office.
[7]
The second applicant was told of a move to another unit. Initially
she agreed to the move but later retracted her consent. Mr
Mahwai
looked for another unit for her and found possible accommodation in
the Law Enforcement Unit. He discussed the proposal
with the second
applicant and according to Mr Mahwai she agreed to this move. She
however never reported for duty at the Law Enforcement
Unit.
[8]
Ms Phahlane then addressed temporary placement letters dated 05
November 2013 to the applicants. They were materially similar.
In
those letters she described the move as a temporary placement for a
period of six months to a year, renewable subject to mutual
agreement
between the employee and the Head of the unit being Ms Phahlane for
the first applicant and Mr Venkatsamy for the second
applicant. They
were to enter into a performance agreement with their Unit Heads. A
grievance letter was then submitted to the
Department by the
applicants concerning their placements. Further correspondence was
entered into about whether the applicants
were tendering their
services to their employer. The applicants were asked in writing to
show why deductions could not be made
on their salaries for not
properly reporting on duty and they responded to such a probe. The
Department made deductions against
the Applicants' remunerations on
the allegations that the applicants did not report for duty as
expected. A further grievance was
lodged by the applicants and when
it could not be resolved to their satisfaction, they initiated the
present application.
The
issue for consideration
[9]
It is to be determined whether the secondment or temporary placement
made by the Respondents, through Mr Mahwai and Ms Phahlane
were in
compliance with the provisions of Section 15 of the PSA, and
consequently lawful and whether the deductions made by the
Department
against the Applicants' remunerations were in compliance with the
provisions of Section 34 of the BCEA read with the
provisions of
Section 34 of the PSA.
Evidence
[10]
The applicants had to prove the allegations made in their statement
of case as well as in the disputed facts listed in the
pre-trial
minute. The first applicant was the only witness they decided to
call. The second applicant remained in attendance during
trial. The
respondents called two witnesses being, Mr Mahwai and Ms Phahlane.
Much of the evidence became common cause and that
which remained
disputed shall be summarized hereunder.
Applicants’
version
[11]
The applicants’ case is that they never consented to the
proposed move as they had not been properly consulted and given
description of the posts they were to occupy. The first applicant
said that after he had been to Ms Phahlane’s office only
to
find her absent, no follow up meeting was arranged by anyone. He
questioned Ms Phahlane’s powers to authorize the move
of the
applicants to other units, saying that it was contrary to the
provisions of section 15 of the PSA. He maintained that both
applicants tendered their services in terms of their employment
contract.
[12]
He said that when he came to work he either used his motor vehicle or
public transport. He knew about
a
register which was kept by the Department at the entrance of the
parking area at the Pretmed Building in which all those entering
the
building with cars would sign and record their entry. As to why his
name barely appeared in it, he said that he would use his
car at
least 5 times a month. On other occasions he would use public
transport. For the period February 2014 to July 2014 no record
of him
appears in that register.
He
denied that the applicants often absented themselves and could not be
found in the building when Mr Mahwai looked for them.
Respondents’
version
[13]
Mr Mahwai said that
he
was tasked by the third respondent to facilitate and to assist in the
placement of the advocates and to make sure that none of
the
advocates would lose their job and to ensure that they were placed
correctly taking into account their suitability. The placement
would
be temporal pending their final placement. There were different
positions that he secured both internally, within the Department,
and
outside the Department.
[14]
Mr Mahwai at first attempted to convene a meeting but could not find
most of the advocate including the applicants. When he
regularly and
at least twice a day, visited the first floor of Pretmed Building
wherein the advocates where stationed for purposes
of execution of
their duties, he could not find them in their office except for two
advocates who are not part of this action.
Whenever he wanted to have
a meeting with them he would not find them telephonically on the land
line and in their offices and
thus forcing him to call them on their
mobile telephones. A
register
was kept at the entrance of the parking area at the Pretmed Building
in which all those entering the building with cars
would sign and
record their entry. In terms of this register the first applicant’s
names barely appeared. In particular,
for the period February 2014 to
July 2014 no record of him appeared in that register.
[15]
When Mr Mahwai finally managed to secure a meeting with the advocates
various
options were placed before them and they indicated that they needed
time to consider those options. On the same day an agreement
was
reached that the advocates would be placed in various positions
pending their final placements. The process of placement would
then
begin.
[16]
After
the meeting Mr Mahwai had a one on one discussion with the first
applicant. He explained to him that there was a position
available
within the office of the CLO branch and the position was Director
Litigation at the level 13, he explained to him
what his
functions would be in that office. Whilst discussing with the first
applicant another advocate, Mr Dlwathi, joined in.
He showed interest
in the same position in the office of the CLO. However, he did not
qualified for that position since it was
at level 13 and Mr Dlwathi’s
position was below that level. Only the first applicant was
qualifying. Mr Mahwai testified
that the first applicant agreed to be
temporally placed at the CLO office to the extent that he went to
report to that office.
Mr Mahwai provided the
first applicant with the mobile phone number of Ms Phahlane in order
that the first applicant
could call her and make an arrangement when
the two could meet after he had not found her in her office.
[17]
As
with regard to the second applicant Mr Mahwai testified that, after a
one on one meeting with her he took her to several units
within the
department where the second applicant could be temporarily placed.
She opted for the position in the office of the Director:
Operation
Management. This was confirmed with an email dated 17 September 2013.
At first she reported there for a few days after
which she asked to
be moved to the Directorate Law Enforcement. Her request was
considered and it was granted and was communicated
to her with an
email.
However,
she did not report at that Unit.
[18]
Mr Mahwai
said
that although the word secondment was use in his correspondence, the
placement was actually a re-assignment of duties in terms
of Section
32 (1) of the PSA, that is, Proclamation 103 of 1994. He also said
that he made regular progress reports to his supervisor,
Ms Phahlane.
In his second progress report dated 6 December 2013 he dealt with
attendance management and said:
“
Attendance
records for members of the In-House Counsel are very poor. They do
not come to work regularly. They prefer to come to
work when it suits
them. Those that manage to come to work usually leaves (sic) early.
Mr Mahwai had individual discussions with
each advocate (not coming
to work regularly) to discuss the importance of regular attendance
and submission of leave forms. Most
of them view this as
intimidation. Consequent to these discussions three advocates
submitted leave forms, but others refused.
”
[19]
The third respondent, Ms Phahlane testified that she was an Acting
Chief Litigation Officer holding the rank of the DDG. Her
office
managed litigation, legal Services in general, Human Resources and
Financial Resources. She said that the Civil Litigation
Unit of
the applicants fell under her branch. She testified that she did have
delegation of powers for Human Resource Management
and that she
therefore could re-assign applicants their duties. The delegation of
her authority was in terms of Section 32 (1)
of the PSA for the
assignment of duties. When she joined the branch, the unit of
the applicants had already been disbanded
and a number of advocates
had already left to other units. A bulk of them went to State Law
Advisors. She encouraged the remainder
to look for placements for
themselves in other directorates promising to support them in that
move. Mr Mahwai was then tasked with
the placement of those who
remained and he constantly gave her updates, either verbally or in
written reports.
[20]
She said that the first applicant called her and told her that he had
come to her office to report for duty but could not find
her. They
both agreed that he would come to her office to report for duty even
if she was not available. She testified that the
office as work
station was available for first applicant to occupy.
She
wrote the letters for the placement of the first applicant in the
Office of the CLO and the second applicant in the Law Enforcement
Unit.
That
was after the applicants had insisted that they required formal
communication regarding their placements.
[21]
Before the unit of the applicants was disbanded they would draft
legal document, give legal opinion, present and argue matters
in
courts. After the disbandment the only change was that they would no
longer present and argue matters in court but would attend
courts and
keep a watching brief.
[22]
When it became apparent that the applicants were not reporting for
work she wrote the letters to them about “Unauthorised
Leave of
Absence: Possible Leave Without Pay”. In those letters she
called upon the applicants to make representations as
to why leave
without pay should not be granted for their unauthorised absence from
work. She never received any representations
and leave without pay
was implemented as the applicants were not reporting for work.
Evaluation
[23]
The issues identified by the applicants to be resolved through
evidence led were earlier identified as whether:
a)
the
secondment or temporary placement made by the Respondents, through Mr
Mahwai and Ms Phahlane were in compliance with the provisions
of
Section 15 of the PSA, and consequently lawful and
b)
the
deductions made by the Department against the Applicants'
remunerations were in compliance with the provisions of Section 34
of
the BCEA read with the provisions of Section 34 of the PSA.
[24]
The first issue suggests that the deductions were made solely on the
basis that the applicants failed to honour their
secondment
or temporary placement to the new units and were thus absent from
duty. The applicants have contended that they have
always honoured
their contracts of employment which were unilaterally changed by the
Department through its secondment or temporary
placement. The
respondents on the other hand have insistently maintained that the
applicants were not reporting for duty. In their
closing submissions
the respondents put the issue in the following manner:
“
Since
the dispute arose, the department has always contended that the
applicants were not reporting to work. The applicants were
aware of
this contention of the department. Despite this knowledge, the
applicants did not attempt to produce any evidence in that
regard
save a mere say so. If the applicant were reporting for duty, they
would produce objective evidence of that instead of making
unsupported allegation.”
[25]
Thus, the respondents’ basis for making the deductions was
never made to be only dependent on the failure of the applicants
to
report at the stations to which they were
seconded
or temporarily placed. Therein lay the difference in the approaches
adopted in this matter by the parties throughout the
trial. A lot of
time and effort was placed by the applicants on issues pertaining to
secondment or temporary placement but little
or not much effort was
placed on whether the applicants reported for duty at least from the
period September 2013.
[26]
As correctly submitted by Mr Gwala for the respondents,
evidence led by the
parties during the trial as to whether the applicants were reporting
for duty is mutually destructive. The first
applicant contended that
they were reporting at work. On the other hand the Department led
evidence that the applicants were often
not reporting at work. On
that basis their version cannot co-exist.
The
standard of proof in civil cases is that of a balance of
probabilities or a preponderance of probabilities. The process
entails
the balancing of probabilities and selecting one conclusion
which seems to be the more natural or plausible conclusion from
amongst
several conceivable ones even though that conclusion may not
be the only reasonable one.
[27]
Apart from the mere say so of Mr Mahwai that the applicants were not
regular work attendees, there is the evidence of the attendance
register which support the version of the respondents. The first
applicant was at pains to explain the absence of the applicants’
name in the prescribed register. His explanation took care of only a
few occasions, as when he took his car for service. There
is also the
delayed receipt by them of email correspondence from Ms Phahlane,
suggesting rather, that they were not in their offices
to access
their emails. Further still, there is the second progress report by
Mr Mahwai to Ms Phahlane, issued in the normal execution
of his
duties. It was not suggested that this was a manipulative exercise in
anticipation for this application. Also,
Clause
1.2.4 of the contract of employment of the first applicant provided
that the employee might be required to perform other
duties or to
work at other places that might reasonably be required by the
employer. Finally, t
he
version of Mr Mahwai on work attendance of applicants was never shown
by the applicants to have any inherent improbabilities.
[28]
As against the second applicant, in particular, while she was in
court she chose not to testify. She could not be said to have
always
been with the first applicant when it came to work attendance, as
they were not said to be living together and always doing
things
together. Her version of work attendance was therefore not
specifically testified to, thus leaving that of Mr Mahwai
unchallenged.
[29]
In the process of balancing the probabilities and selecting one
conclusion which seems to be the more natural and plausible,
I find
that the version of the respondents has overwhelming probabilities.
Accordingly, I accept that the applicants did not tender
their
services as regularly as they had to in terms of their contract of
employment. A determination whether the applicants’
services
were lawfully or properly
seconded
or temporarily placed to the new units would, in my view, only serve
an academic purpose. Had it been necessary to indulge
in that
exercise, I would have found that in the ‘new units’ both
applicants would do the same duties with the exception
of presenting
matters in court. They would be working under the same Head of a
unit, Ms Phahlane, with the first applicant reporting
directly to her
and the second applicant falling within her line management duty. Ms
Phahlane therefore acted within her delegated
powers in terms of
section 32 (1) of the PSA to re-allocate their duties.
[30]
In the event I am wrong in my assessment of the powers of the Head of
the Office of the Chief Litigation Officer, Ms Phahlane
in this
matter, I would still find that the applicants were not entitled to
refuse to work on the facts of this matter. In
Coin
Security (Cape) v Vukani Guards & Allied Workers' Union
,
[3]
court held that:
“
A
contract of employment is a contract with reciprocal rights and
obligations. The employee is under an obligation to work and the
employer is under an obligation to pay for his services. Just as the
employer is entitled to refuse to pay the employee if the
latter
refuses to work, so the employee is entitled to refuse to work if the
employer refuses to pay him wages which are due to
him."
[31]
Indeed
the employee is entitled to refuse to work if the employer refuses to
pay him wages which are due to him. In the instant
case, the
applicants refused to regularly tender their services even long
before their services were seconded or temporarily placed
to the new
units. That absconding habits continued unabated. Their failure to
attend work was thus not proved to have been a reaction
to the
secondment or temporary placement.
[32]
As a contract of employment is a contract with reciprocal rights and
obligations, the applicants were under an obligation to
work in which
case the Department was under an obligation to pay for their
services. Therefore the Department was entitled to refuse
to pay the
applicants as they refuses to work. In other words, the applicants
were legally not entitled to refuse to carry out
their side of the
employment contract. In fact, it was them who were in breach of their
employment contract by unlawfully failing
to perform their
obligations. As
the
applicants failed to render their services to the Department, the
Department became entitled, in law, to implement the no-work,
no-pay
and no-benefit rule.
[33]
The last probe turns on whether a proper procedure was followed by
the Department in giving effect to the deductions on the
salaries of
the applicants. The issue turns on whether the deductions made by the
Department against the Applicants' remunerations
were in compliance
with the provisions of Section 34 of the BCEA read with the
provisions of Section 34 of the PSA.
[34]
Section 34 of the BCEA provides, inter alia that:
"
34.
Deductions and
other acts concerning remuneration
(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
the 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.
[35]
It is common cause that the applicant did not agree to the deductions
being made. In fact they resisted the deductions being
made, hence
this application. Mr Mpanza for the
applicants
argued that they were not give a hearing prior to the application of
the no work no pay principle. In terms of section
34 (2) (b) of the
BCEA the respondents had to follow a fair procedure and had to give
the applicants a reasonable opportunity to
show why the deductions
should not be made. The applicants were given letters by Ms Phahlane
who asked them to give reasons why
the deductions were not to be
made. They received the letters. Their testimony was that they
responded to the letters. They were
asked to produce proof of their
submission of their responses but none was forthcoming. The
probability is that the applicants
failed to tender their responses.
There is no issue that they were not given reasonable time. In fact
by saying they sent a response
that was in their bundle of documents,
they excluded any suggestion that no reasonable time was afforded to
them.
[36]
I accordingly find that the respondents followed a fair procedure in
making the deductions against the salaries of the applicants.
All
things considered therefore, including the law and fairness
pertaining to costs, I issue an order in the following terms:
1.
The
application for a declaratory order and an order for repayment of
monies deducted are both dismissed.
2.
The
applicants are to pay the costs of this application. They are held to
be jointly and severally liable for these costs.
_________
Cele J.
Judge of the Labour Court
of South Africa.
APPEARANCES:
FOR
THE APPLICANTS: Mr D Mpanza (First Applicant)
Instructed By: the
Applicants.
FOR
THE RESPONDENTS: Mr M Gwala
Instructed By: The State
Attorney, Pretoria.
[1]
Act Number
75 of 1997
hereafter referred to as the BCEA.
[2]
Act Number
103 of
1994 hereafter referred to as the PSA.
[3]
1989 (4) SA 234
(C)
at 230I