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[2018] ZALCCT 21
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Bux v Minister of Defence and Military Veterans and Others (C510/2018) [2018] ZALCCT 21; (2018) 39 ILJ 2298 (LC) (15 June 2018)

REPUBLIC
OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 510/2018
In
the matter between:
IQRAM
BUX
Applicant
and
MINISTER
OF DEFENCE AND
MILITARY VETERANS
First Respondent
SECRETARY
FOR DEFENCE AND
MILITARY VETERANS
Second Respondent
SOUTH
AFRICAN NATIONAL
DEFENCE
FORCE
Third Respondent
DEPARTMENT
OF DEFENCE
Fourth Respondent
Heard
:
12 June 2018
Delivered
:
15 June 2018
Summary:
Urgent application to cease deductions in terms of Public Service Act
s 38(2)(b)(i). Constitutional Court
judgment in
Ubogu
applied.
Section unconstitutional and deductions unlawful. Interdict granted.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant, Col Iqram Bux, is the Officer Commanding of 2 Military
Hospital in Wynberg. The respondents (conveniently referred
to
collectively as the Department of Defence) claim that he has been
incorrectly “translated” to a higher paying post
and
overpaid accordingly. It has been deducting the overpayments from his
salary in accordance with s 38(2)(b)(ii) of the Public
Service
Act
[1]
. Col Bux seeks to
interdict them from making any further deductions following a
declaration of invalidity of the subsection by
the Constitutional
Court in
Ubogu
.
[2]
Background
facts
[2]
Col Bux is a medical practitioner. He has been employed by the
Department since 1999. In terms of an Occupational Specific
Dispensation (OSD) he was “translated” – the
Department says incorrectly – to the post of Clinical Manager

in 2009 and to the post of Senior Clinical Manager (Grade 1) instead
of Manager Medical Services (Grade 1) with effect from 1 February

2012. On 31 October 2017 the Chief Financial Officer of the
Department sent him a letter telling him that the Secretary for
Defence
and Military Veterans had approved deductions to be made from
his salary in order to recoup alleged overpayments to him. The
Department
deducted R20 397, 97 from his monthly salary starting in
December 2017 and continues to do so. The next deduction is due to be
made on 15 June 2018, hence the need to hand this judgment down by
that date, two days after the hearing.
[3]
Col Bux has not agreed to the deductions. The Department purports to
deduct the money in terms of s 38 of the Public Service
Act (PSA). He
says that the deductions are unlawful and must stop.
Evaluation
/ Analysis
[4]
Before I deal with the merits of the application, Ms
Botma
raised
two points
in limine
, relating to urgency and jurisdiction.
Although the matter was argued on Tuesday 12 June 2018 and the
respondents had had more
than ten days to deliver their answering
affidavit, Ms
Botma
only sent her written submissions to the
Court by email when it was about to close at 16:00 on Thursday 14
June, two days after
the matter had been argued and a few hours
before the judgment was due to be handed down at 10:00 on Friday 15
June 2018. I have
nevertheless considered those submissions.
Urgency
[5]
Ms
Botma
argued that the matter is not urgent, as the
applicant has known since 2016 that deductions would be made and they
have been made
since December 2017.
[6]
The short answer is that the harm is ongoing. Col Bux does not seek
any relief with regard to past deductions; he only seeks
to interdict
any
further
deductions, the first of which is to take place
today, Friday 15 June 2018. The respondents have taken ten court days
to deliver
an answering affidavit. There is no prejudice to them.
[7]
I am satisfied that the matter must be dealt with on an urgent basis.
Jurisdiction
[8]
The respondents take issue with the jurisdiction of this Court. It is
not clear on what basis they do so. When the matter was
argued, Ms
Botma
had not filed any heads of argument, and she did not
pursue the point on jurisdiction with any vigour. She did not address
it at
all in her belated written submissions. The deponent to the
answering affidavit, the Department’s Chief Director: Human
Resources,
simply states that “it is specifically denied that
this Honourable Court has jurisdiction to adjudicate this matter”

and that “further legal argument as to the application of the
Basic Conditions of Employment Act to this matter will be presented

at the hearing hereof”.
[9]
The Basic
Conditions of Employment Act
[3]
provides in s 3(1)(a):
“
This
Act applies to all employees and employers except –
(a)
members of the National Intelligence Agency, the South African Secret
Service and the South African National Academy of
Intelligence.”
[10]
As the
authors point out in
Labour
Law through the Cases
[4]
,
the amendment of the BCEA by the Intelligence Services Act
[5]
,
which removed the National Defence Force from the list of exclusions
in s 3(1)(a) of the BCEA, was considered in
Bonga
.
[6]
Cele AJ rejected the argument that the failure to retain the SANDF in
the list of exclusions was in error and held that the BCEA
applies to
members of the Defence Force.
[11]
Col Bux is
such a member. The BCEA applies to him. And this Court has
jurisdiction over all matters in terms of the BCEA (such as
s 34) and
any matter concerning a contract of employment.
[7]
This Court may deal “with any matter necessary or incidental to
performing its functions” in terms of the BCEA
[8]
.
This Court does have jurisdiction to decide this application.
BCEA
[12]
Section 34 of the BCEA prohibits deductions without an agreement,
law, court order or arbitration award:
“
Deductions
and other acts concerning remuneration
34.
(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.”
[13]
The parties to this dispute are bound by the BCEA. And Col Bux has
not agreed to the deductions. Neither are the deductions
permissible
in terms of any law, collective agreement, court order or arbitration
award. The deductions are not permissible in
terms of the BCEA.
[14]
The only “law” that could come to the rescue of the
Department is the Public Service Act.
Ubogu
and the Public Service Act
[15]
Section 38 of the PSA provides that:
““
(1)
(a)        If an incorrect salary,
salary level, salary scale or reward is awarded to an
employee, the relevant executive authority shall
correct it with
effect from the date on which it commenced.
(b)
Paragraph (a) shall apply notwithstanding the fact that the employee
concerned was unaware that an error had been made in the
case where
the correction amounts to a reduction of his or her salary.
(2)
If an employee contemplated in subsection (1) has in respect of his
or her salary, including any portion of any allowance or
other
remuneration or any other benefit calculated on his or her basic
salary or salary scale or awarded to him or her by reason
of his or
her basic salary—
(a)
been underpaid, an amount equal to the amount of the underpayment
shall be paid to him or her, and that other benefit which
he or she
did not receive, shall be awarded to him or her as from a current
date; or
(b)
been overpaid or received any such other benefit not due to him or
her—
(i)
an amount equal to the amount of the overpayment shall be recovered
from him or her by way of the deduction from his or
her salary of
such instalments as the relevant accounting officer may determine if
he or she is in the service of the State, or,
if he or she is not so
in service, by way of deduction from any moneys owing to him or her
by the State, or by way of legal proceedings,
or partly in the former
manner and partly in the latter manner;
(ii)
that other benefit shall be discontinued or withdrawn as from a
current date, but the employee concerned shall have the right
to be
compensated by the State for any patrimonial loss which he or she has
suffered or will suffer as a result of that discontinuation
or
withdrawal.”
[16]
This is the section on which the Department relies for the deductions
from Bux’s salary. But the Constitutional Court
has confirmed a
decision of this Court that s 38(2)(b)(i) of the PSA is
unconstitutional.
[17]
In
Ubogu
[9]
this
Court issued a rule
nisi
calling upon the Minister of Public Service, the Finance MEC and the
Finance Minister to show cause why: (i) it should not declare
that
the claim to recover the overpaid amounts [paid to Ms Ubogu] had
prescribed; (ii) the unilateral deductions of monthly instalments

were not ultra vires; alternatively, (iii) section 38(2)(b)(i) should
not be declared unconstitutional and falls to be read in
a manner
consistent with the Constitution; (iv) section 38(2)(b)(i) should not
be declared unconstitutional and struck down; and
(v) the Head of the
Department of Health and the MEC for Health should not be directed to
pay the costs jointly and severally.
Pending the outcome of the
application, the Head of the Department of Health and the MEC for
Health were interdicted from making
any further deductions.
[18]
On the
return day, the Court ordered:
[10]
“
Order
1.3 as granted by Steenkamp J on 29 September 2016 is confirmed to
read:
‘
It
is declared that section 38(2)(b)(i) of the Public Service Act
(Proclamation 103 of 1994) is unconstitutional as presently
formulated,
and accordingly falls to be interpreted in a manner which
conforms with the provisions of the Constitution of the Republic of
South
Africa Act 108 of 1996 in particular sections 23(1), 25(1) and
34 thereof, to be read as follows:
‘
(b)
been overpaid or received any such other benefit not due to him or
her—
(i)
an amount equal to the amount of such overpayment shall be
recovered
from him or her by way of deduction from his or her salary of such
instalments as the relevant accounting officer and
employee, if he or
she is in the service of the State, may agree, and failing agreement
by way of legal proceedings, or if he or
she is not so in service of
the State, by way of deduction from any money owing to him or her by
the State as the relevant accounting
officer and former employee may
agree, and failing agreement by way of legal proceedings, or partly
in the former manner and partly
in the latter;”
[19]
The applicant in that case launched a confirmation application in the
Constitutional Court. It was heard on 18 May 2017. The
Constitutional
Court eventually handed down judgment on 7 December 2017. It declared
s 38(2)(b)(i) of the PSA unconstitutional
and held that the interim
interdict issued by this Court on 29 September 2016 stands.
[20]
The parties and this Court are bound by the judgment of the apex
court. The continuing deductions from Col Bux’s remuneration,

purportedly in terms of s 38 of the PSA, are unlawful. And the
Department’s argument that the decision to deduct was taken

before the Constitutional Court eventually handed down judgment in
December last year (but after the judgment of this Court in
September
2016), does not hold water. The Department continued to deduct after
December 2017. And Col Bux only seeks a prospective
interdict in this
application, and no retrospective relief.
Set-off
[21]
The
respondents also sought to rely on the doctrine of set-off. But
Ubogu
dealt with that principle as well. Nkabinde ADCJ held:
[11]
“
[69]
Before I deal with the remedy, it is necessary to address the
question whether the section 38(2)(b)(i) deductions regulate

set-off.  The appellants submit that section 38(2)(b)(i)
regulates the right of set-off, which is not self-help, arbitrary
or
unfair.  The underlying premise to the argument that common law
set-off does not amount to a form of self-help, is not
correct.
[70]
The doctrine of set-off is recognised under the common law.  The
Appellate Division, as the Supreme Court of Appeal was
then known,
pointed out in
Schierhout
that:
‘
When
two parties are mutually indebted to each other, both debts being
liquidated and fully due, then the doctrine of compensation
comes
into operation.  The one debt extinguishes the other
pro
tanto
[only to the extent of the debt] as effectually as if
payment had been made”.
[71]
In
Harris
, Rosenow J remarked that the ‘origin of the
principle appears rather to have been a common-sense method of
self-help’.
In my view, the mechanisms in the
impugned provision are not comparable to set-off under the common
law.  The doctrine of
set-off does not operate
ex lege
(as a matter of law).  Besides, there are no mutual debts.
Here, the deductions in terms of section 38(2)(b)(i) are
made from an
employee’s salary.  The dispute regarding whether the
translation of her position as Clinical Manager:
Medical affected her
starting package on the new position remains unresolved.
Therefore, the parties cannot be said to be
mutually indebted to each
other.  It is arguable that the alleged debt can, in the
circumstance, be said to be fully due.
[72]
The doctrine cannot be invoked to defeat the employee’s claim
in relation to her salary.  Particularly, where a
dispute
surrounding the translation of her position that, allegedly, did not
affect her starting package, had not been resolved
by the application
of law in a fair hearing before a court.  At the risk of
repetition, the mechanism in the impugned provision
constitutes
self-help.  As the Labour Appeal Court correctly observed in
Western
Cape Education Department
,
[12]
the state has an obligation to exercise its power under section
38(2)(b)(i) reasonably and with regard to procedural fairness.

Indeed, the notions of fairness and justice inform public policy −
which takes into account the necessity to do simple justice
between
individuals.   The contention that a deduction under
section 38(2)(b)(i) regulates the right of set-off is, in
the
circumstance, flawed.  However, this should not be understood to
suggest that there can never be instances in which the
doctrine of
set off, especially where there are mutual debts in existence, may be
invoked.”
[22]
In this case, Col Bux does not admit to any “mutual debts”.
The doctrine of set-off cannot be invoked.
Conclusion
[23]
The applicant is entitled to the relief he seeks.
Costs
[24]
Despite the clear authority in
Ubogu
, the respondents
persisted in opposing the relief sought. The Constitutional Court in
that case simply ordered that the successful
party is entitled to
costs. But this Court has to take into account the requirements of
law and fairness. In law, the successful
applicant is entitled to his
costs. In fairness, there is no reason to deprive him of those costs.
Given the clear authority of
the apex court on which he relied from
the outset, it is difficult to fathom why the respondents persisted
with their opposition
and incurred further costs for the fiscus.
Order
[25]
I therefore make the following order:
25.1
The application is heard as an urgent application.
25.2
The respondents are interdicted from unilaterally making any further
deductions from the applicant’s remuneration
or pension fund
pay-out.
25.3
The respondents are ordered to pay the costs of this application
jointly and severally, the one paying, the other
to be absolved.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
A
Coetzee
Instructed
by Herold Gie.
RESPONDENTS:
M
Botma
Instructed
by the State Attorney.
[1]
Act
103 of 1994.
[2]
PSA
obo Ubogu v Head, Department of Health, Gauteng
2018
(2) SA 365
(CC); (2018) 39
ILJ
337 (CC); [2018] 2 BLLR 107 (CC).
[3]
Act
75 of 1997 (BCEA).
[4]
Du
Toit et al,
Labour
Law through the Cases
(LexisNexis Issue 26), BCEA-8.
[5]
Act
65 of 2002.
[6]
Bonga
v Minister of
Defence
[2006]
3 BLLR 286
(LC); (20006) 27
ILJ
799
(LC).
[7]
BCEA
s 77.
[8]
BCEA
s 77A(g).
[9]
Above
fn 2.
[10]
Public
Servants Association of South Africa obo Ubogu v Head of Department:
Department of Health, Gauteng
[2016]
ZALCJHB 544.
[11]
Ubogu
paras
[69] – [72].
[12]
Western
Cape Education Department v GPSSBC
[2014]
ZALAC 34
;
[2014] 10 BLLR 987
(LAC); (2014) 35
ILJ
3360
(LAC) par 29. [Dismissing the appeal from the Labour Court in
Western
Cape Education Department v General Public Service Sectoral
Bargaining Council and Others
(C 360/2012) [2013] ZALCCT 5;
[2013] 8 BLLR 834
(LC); (2013) 34
ILJ
2960 (LC)].