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[2017] ZALCJHB 393
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PSA obo Tlowana v Department of Agriculture Limpopo and Another (JR868/10) [2017] ZALCJHB 393 (27 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 868/10
In the matter between:
PSA
obo MP TLOWANA
Applicant
and
DEPARTMENT OF
AGRICULTURE LIMPOPO
First Respondent
GOVERNMENT EMPLOYEES
PENSION FUND
Second
Respondent
Heard:
19 April 2017 to 21 April 2017
Delivered:
27 October 2017
JUDGMENT
MAHOSI
AJ
[1]
There
are a number of applications before this Court. The applicant
initially brought an application on behalf of its member (Mr.
Tlowana) for an order to declare the first respondent’s
deduction of Pension amounts from Mr Tlowana’s salary declared
unlawful and ordering the first respondent to repay the unlawful
pension Fund deductions. However, at the hearing, the applicant’s
counsel submitted that he did not wish to pursue arguments in
relation to this issue as it was resolved.
[2]
The
applicant further seeks an order to clarify an order granted by Cele
J on the 24
th
of February 2012 so as to give effect to its true intention. The said
order states as follow:
‘
1.
Condonation for late filing of the answering affidavit is granted but
the first respondent
is to pay costs thereof.
2.
The arbitration award dated 01 March 2010, issued by the second
respondent in
this matter is reviewed and set aside.
3.
The
first respondent is ordered to compensate Mr M.P. Tlowana an amount
equal to the difference between what he would have earned
as from the
date on which the fourth respondent was appointed against the
contested Sekhukhune post, and the salary he continued
to earn.
4.
Such payment is to be made within 30 days from today.
5.
No cost order is made.’
[3]
Furthermore,
the applicant seeks the court to order the first respondent to
correct Mr. Tlowana’s salary notch from his current
salary
level 12 notch 8 to salary level 12 notch 9 with an annual salary of
R710 613.00. At the hearing, the first respondent conceded
that Mr.
Tlowana was not on the correct
notch
.
The parties were, therefore, in agreement on Mr. Tlowana’s
salary level.
[4]
The
first respondent seeks an order to set aside the applicant’s
writ
of
execution issued by this Court on the 31 October 2013 under case
number JR 868/10.
Background
[5]
The applicant filed a review application wherein he sought an
arbitration award in respect of his unfair labour practice dispute
to
be reviewed and set aside. The review application was heard on the
24
th
of February 2012 before the Honourable Cele J. The background facts
of this case were outlined by Cele J in his judgment as follows:
[1]
‘
[3]
On 22 July 2005, the first respondent advertised the position of a
Manager Cooperate Services:
Sekhukhune. It was one of the posts
advertised for five areas. The employee applied for the Sekhukhune
post together with a number
of other people including the fourth
respondent. In the list of recommendations, he was no. 1 while the
fourth respondent was no.
2. There was a differential margin of about
2% between the two of them. The interviewing panel recommended his
appointment.
[4]
The first respondent appointed the fourth respondent instead. The
employee was aggrieved
by his non-appointment and assisted by his
union, he referred an unfair labour practice dispute relating to
promotion. The matter
was arbitrated upon and the award was issued in
favour of the first respondent. The employee successfully applied for
the review
and setting aside of that arbitration award and the order
of this Court remitted the matter to the second respondent for a
de
novo
arbitration hearing before a different Commissioner or
Arbitrator. It so happened that I was the Judge seized with the
matter at
the time.
[5]
In the meantime, the fourth respondent successfully applied for a
horizontal transfer
from the contested post to another. The first
respondent re-advertised the contested post which then had become
vacant. Again the
employee applied for the post.
He was
recommended for and finally appointed at that post. He sought
compensation for the delayed appointment.
He referred an
unfair labour practice dispute relating to promotion for
conciliation. Conciliation failed to resolve it. He referred
it to
arbitration and he then came before the third respondent in this
case. The third respondent in the arbitration award issued,
found no
fault on the part of the first respondent and dismissed the
referral.’
[6]
The applicant further sought compensation for the delayed appointment
of its member, Mr Tlowana. Having considered the parties’
submission, Cele J issued the order mentioned in paragraph 1 above
and delivered a judgment in which he found as follows
[2]
:
‘
The
arbitration award in this case therefore cannot stand. I am entitled
to intervene by reviewing it and by setting it aside and
in so doing
I am called upon to substitute and say that the member of the
applicant, in this case
Mr
Tlowana, deserved to have been promoted from the date on which the
fourth respondent was appointed. The amount of compensation
to which
he is entitled is the same as was testified to during the arbitration
hearing
.
I believe there is no issue about that because this was never raised
as an issue. The applicant has been successful. I do not
want to
dissuade people from coming to this Court. I have no reasons to award
a costs order against the first respondent, and therefore:
1.
I order the first respondent to compensate Mr Tlowana to the extent
claimed by
him.
2.
The respondent has to pay interest but that interest must be paid
from today.
So to the extent that the payment will remain outstanding
it must be calculated from today’s date.
3.
The payment is to be made within 30 days from the date of this order.
No
costs order is made.’
[7]
The fourth respondent referred to in the abovementioned judgment was
Mr. Makhafola. It is common cause that Mr. Makhafola was
promoted in
January 2006. It is apparent from Cele J’s judgment that Mr.
Tlowana
deserved
to have been promoted from the date on Mr. Makhafola was appointed,
being January 2006.
It
is further common cause that the first respondent failed to comply
with the order of Cele J and further that a writ of attachment
was
issued out of this Court for an amount of R411 727.00 plus interest.
The first respondent, after being served with a writ of
execution,
paid Mr. Tlowana the amount of R468 230.36 on the 28
th
of February 2013.
[8]
Despite the payment, Mr. Tlowana claimed that the first respondent
failed to upgrade his salary to level 12 and to correct his
salary
notch with effect from 1
st
of October 2008. As a result, the applicant made an application for a
second writ of execution dated 24
th
of October 2013 “for an amount of R62 366.31 together with
interest thereon at the rate of 15.5% per annum from 25
th
of March 2012 and the sum of R38 1965.44 for the taxed costs and
charges.”
[3]
It is common
cause that Mr Tlowana was on salary level 12 from October 2008. The
applicant’s contention is that when implementing
the court
order, the first respondent had to backdate the upgrading of his
salary level to level 12 with effect from April 2008.
The first
respondent allegedly overlooked the fact that the post was already
upgraded from salary level 11 to salary level 12 prior
to October
2008.
[9] According to the
applicant, Mr. Tlowana’s salary was not adjusted to the amount
paid to Mr. Makhafola and, as a result,
the first respondent remained
in contempt of the court order. The applicant further submitted that
Mr. Tlowana has also not been
paid the difference in salary from 30
th
of September 2008 to the date of this application. In total, to date,
the applicant claims that the first respondent owes him an
amount of
R148 577.71. This claim is based on the applicant’s comparison
with another employee, Mr. Leshokgohla who was employed
by the first
respondent around the same period as Mr. Makgafola.
[10] The first respondent
brought an application to stay the applicant’s second writ of
execution and in the founding affidavit,
the first respondent
submitted that there was no provision in the court order issued by
Cele J that it was ordered to upgrade Mr.
Tlowana’s salary to
level 12 and to pay him performance bonuses. The first respondent
further submitted that in satisfying
the first writ, it overpaid Mr
Tlowana an amount of R232 545.19. The first respondent submitted that
it was incorrect for the applicant
to compare himself with Mr.
Leshokgohla as each individual is assessed on his/her own merit and
that notches are awarded based
on individual’s assessment. In
essence, the first respondent argued that there was no automatic
awarding of higher notches.
It was the first respondent’s
further submission that the applicant’s calculations did not
take into account any of
the statutory calculations. In response, the
applicant brought an application to consolidate all the application
flowing from judgment
of Cele J.
[11] On the 3
rd
of June 2016, Van Niekerk J granted an order in the following terms:
‘
1.
The following applications are hereby consolidated and will be heard
together:
1.1
The applicant’s first notice of motion under case number
JR868/2010 dated 14 March
2014 (of the applicant).
1.1.1 The following
prayers in the notice of motion are abandoned: prayer 1.1, 1.2 and
2.2
1.1.2 The only
relief requested is in terms of prayer 2.1
1.2
The Respondent’s notice of motion under case number JR868/2010
dated 10 December 2013
(setting aside of the second writ of execution
dated 31 October 2013).
1.3
The Applicant’s second notice of motion (of the applicant)
under case number JR868/10
dated December 2014.
2.
The parties will exchange heads of arguments dealing with all three
of the abovementioned
applications, on or before 10 (ten) court days
prior to the hearing.
3.
The costs of this application are reserved.
4.
Enrolled on 1 September 2016.’
[12] On the 1
st
of September 2016, Tlhotlhalemaje J considered the parties’
submissions and issued an order in the following terms:
‘
1.
The matter be referred for oral evidence and set down on the trial
roll;
2.
The oral evidence be led to determine which party owes which party
money, if
any at all, specifically arising from paragraph 3 of Cele
J’s order of 24 February 2012.
3.
The application and counter application will stand as pleadings.
4.
The costs are reserved.’
[13] What follows is the
summary of oral evidence that was led during the trial.
Evidence
of
parties
[14] Mr. Tlowana
testified for himself and Mr. Khaukanani Percival Mbedzi testified
for the first respondent.
Applicant’s
testimony
[15] Mr. Madimetja Peter
Tlowana (“Mr. Tlowana”) testified under oath that he was
still employed by the first respondent
as the Manager: Human Resource
Management, Sekhukhune District. Mr. Tlowana further testified that
his interpretation of Cele J’s
order was that, as Mr.
Makhafola, he should have been promoted from salary level 9 to the
salary level 11 with effect from 1 January
2006. Furthermore, he
stated that as Mr. Makofola’s post was upgraded from level 11
to level 12 in April 2008, the first
respondent should backdate the
upgrading of his salary to level 12 with effect from April 2008.
[16] Mr. Tlowana further
confirmed that the first respondent’s failure to comply with
Cele J’s order resulted in him
instructing his attorneys to
issue a writ of execution amounting to R411 727.00 plus interest
which amount was computed by him
in terms of translation key and was
not disputed when submitted in court. The said writ of execution was
issued on the 18
th
of October 2012. Upon being served with
the writ, the first respondent paid him an amount of R468 230.36 on
the 28
th
of February 2013.
[17] Subsequently, Mr.
Tlowana made an application for the second writ for an amount of R62
366.31. The second writ was for the
amount owing of the salary
difference between salary level 11 to 12 calculated from 01 July 2009
to 30 June 2010. Mr. Tlowana stated
that the problem arose in April
2008 when he was not given a salary progression. Under
cross-examination, Mr Tlowana testified
that he was on the correct
salary level but incorrect notch. According to him, he was supposed
to be on level 11 from 1 January
2006. On the difference in
calculation, Mr. Tlowana testified that he was appointed in October
2008 and that he was put on salary
level 12 with the salary being
R407 748. Mr. Tlowana argued that in April 2008 when all employees on
level 11 were upgraded he
should also have been upgraded.
[18] On the allegation
that he was overpaid, he agreed that the payment was done on BAS but
denied that there were no deductions
except for the pension fund
payable to the Government Employment Fund. Mr. Tlowana argued that he
personally completed his tax
returns and further submitted that his
calculations of the amount due to him date back from 01/01/2007 as
his salary level was
only upgraded on 01/10/2008 instead of April
2008.
[19] Mr. Tlowana further
testified that his first computation of the amount owed to him did
not include the years 2009, 2010, 2011
and 2012 because he did not
know the notches. He submitted that the reason his calculations
include the year 2013 is because the
court ordered that he be paid
continuously. Mr. Tlowana conceded that on the 1
st
of
October 2008, he was paid on the correct notch when he was appointed
to the post. He further stated that although the court
order does not
specify the notch, it states that he should be put where he was
supposed to have been. Mr. Tlowana submitted that
he is 12 years in
the position and he is supposed to be in notch 12, not notch 10.
Under cross-examination he testified that in
April 2016, he moved
from notch 9 straight to notch 11 as he was assessed and was
promoted. In addition, he stated that he confirmed
that he did
receive a pay progression. However, he denied that he was overpaid by
the first respondent.
The respondent’s
witnesses
[20] Mr. Khaukanani
Percival Mbedzi (“Mr. Mbedzi”) testified under oath that
the applicant’s claim that the first
respondent owes Mr.
Tlowane an amount of R184 702.92 is not correct and that his
calculations are flawed. Mr. Mbedzi’s understanding
of Cele J’s
order is that Mr. Tlowana was to be paid the salary he was deprived
of had he been appointed from January 2006
to September 2008 as he
was promoted to the position in question in September 2008. He
submitted that the amount of R468 230.36
that was paid to Mr. Tlowane
as per the first writ of execution, was calculated by Mr Tlowane and
was not correctly done.
[21] Mr. Mbedzi testified
that the re-calculation of the amounts owed to Mr. Tlowane was
necessitated by the applicant’s further
claim of money from the
first respondent. Proper calculation revealed that Mr. Tlowane was
only owed R207 250.42 plus the interest
of 13.72% which brought the
amount to R235 685.17. According to Mr. Mbedzi, the difference in
calculations was brought by the applicant’s
use of the basic
salary of R155 409.00, which included fringe benefits in arriving at
his total amount without taking into account
the deductions.
[22] Mr. Mbedzi testified
that Mr. Tlowana’s pay progression, amounting to R58 237.12,
was to address variances or incorrect
notch against the one he should
have been on from 1 October 2008 to 31 July 2016. In addition, Mr.
Tlowana was entitled to an amount
of R17 091.75 being performance
bonus which was based on a wrong level from 2006 and wrong notch from
2008. An amount of R16 640.17
was interest on the pension that was
incorrectly deducted from Mr. Tlowana. The amounts of pay
progression, performance bonus and
pension interest add up to R91
969.04 and if deducted from the alleged overpayment of R232 545.19,
then Mr. Tlowana owes the first
respondent an amount of R140 576.15.
Mr. Mbetsi conceded that Mr. Tlowana is not on the correct notch as
he is on R891 039 instead
of R904 404.
Cele J’s
judgment
[23]
It is clear from Cele J’s judgment that
the
amount of compensation to which Mr. Tlowana is entitled “
is
the same as was testified to during the arbitration hearing
.”
The first respondent was further ordered to pay interest from the day
of the order.
The
issue is what was the amount that was testified on in the arbitration
hearing. According to the record, Mr. Tlowana testified
as
follows in the arbitration hearing:
‘
MR.
CARRIM: And what is the amount?
WITNESS: R448
693.83
MR CARRIM: What
are you saying? What is the amount?
WITNESS: This
amount I want to be compensated to this amount. This amount is the
difference from when Miss McArthur was appointed
in this post and I
was not and until when I was appointed to this post.’
[4]
[24]
It follows that the first respondent was ordered to pay Mr. Tlowana
an amount of R448 693.83 plus interest calculated from
the date of
the order being 22
nd
February 2012 to the date of his payment being
28
th
of February 2013. This is the amount that was paid to Mr. Tlowana
after he issued a writ of execution to the first respondent.
[25]
Therefore,
Mr.
Tlowana’s second writ of execution dated 24 October 2013 was
not for an amount that was ordered by Judge Cele. The applicant
ought
not to have proceeded to have the second writ issued by the Registrar
of the Labour Court on the basis of an unliquidated
claim. The
applicant had a new claim against the first respondent and should
have brought a new application. In the absence of
such an
application, this Court cannot make any pronouncement in this
respect.
[26] That being said, the
first respondent’s counsel and Mr Mbedzi both conceded in the
hearing that Mr. Tlowana is not on
the correct notch as he is on R891
039 instead of R904 404. The applicant should, therefore, place Mr.
Tlowana on the correct notch.
Regarding the claim of Mr. Tlowana’s
overpayment, I am of the view that if the first respondent wishes to
claim overpayment
from Mr. Tlowana, it would have to bring an
application to that effect. It is therefore not for this Court to
adjudicate whether
the first respondent overpaid the applicant or
whether the applicant has a further claim against the first
respondent.
Costs
[27]
With
regard to costs, I am of the opinion that the requirements of law and
fairness dictate that there should be no order as to
costs as t
he
parties are engaged in an ongoing employment relationship.
Order
[28] Accordingly, I make
the following order:
a)
The writ of execution dated 24 October 2013 is set aside.
b)
There is no order as to costs.
__________________
Mahosi AJ
Acting
Judge of the Labour Court
APPEARANCES:
FOR THE
APPLICANT:
Adv. M.S. Schnehage
Instructed by AM Carrim
Attorneys
FOR THE FIRST RESPONDENT:
Adv. F.M.M.
Snyman,
Instructed
by The State Attorney
[1]
PSA obo Tlowana v MEC
of Agriculture
(2012) 33 ILJ 2675 (LC).
[2]
At
para 16.
[3]
See
writ of execution dated 31/10/2013 on page 42 of bundle A.
[4]
Record page 15 line
5-11.