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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
CASE NO: 297/2025
DATE HEARD: 18/02/2025
DATE DELIVERED: 25/02/2025
In the matter between
BULELWA MZALAZALA APPLICANT
and
THE EASTERN CAPE DEPARTMENT OF
ARTS, SPORTS AND CULTURE 1st RESPONDENT
DIRECTOR OF HUMAN RESOURCES,
PHELISILE KONDILE 2nd RESPONDENT
JUDGMENT
ROBERSON J :
Introduction
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[1] The applicant is an employee of the respondent. In this application she seeks
an order interdicting the respondent from making certain deductions from her salary
on the grounds that there has been non -compliance with s 34 of the Basic
Conditions of Employment Act 75 of 1997 (the BCEA). This section provides:
“Deductions and other acts concerning remuneration
34. (I) An employer ma }’ not make any deduction from an employee’s
remuneration 15 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 lav’.
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 lo ss 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 25 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 30 money.
(3) A deduction in terms of subsection(1)(a) in respect of any goods
purchased by the employee must specify the nature and quantity of the
goods.
(4) An employer who deducts an amount from an employee’s
remuneration in terms of subsection (1) for payment to ano ther person
must pay the amount to the person in 35 accordance with the time
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period and other requirements specified in the agreement. law. court
order or arbitration award.
(5) An employer may not require or permit an employee t o –
(a) repay any remune ration except for overpayments previously
made b~ the employer resulting from an error in calculating the
employee’s remuneration; or
(b) acknowledge receipt of an amount greater than the
remuneration actually received.”
Backgroun d
[2] The applicant has been employed by the respondent for ten years. During
2024 she applied for temporary incapacity leave for the periods 26 March to 28 June
2024, and 1 July to 30 September 2024 , but this leave was declined for lack of
compliance with the required supporting medical informat ion. The applicant’s normal
sick leave had been exhausted. The respondent followed a procedure in terms of a
policy document entitled Policy and Procedure on Incapacity Leave and Ill -health
Retirement, which was determined in terms of section 3(2) read with section 5(6) of
the Public Service Act, 1994.
[3] After each period of temporary incapacity leave was declined, the respondent
wrote to the applicant , on 13 August 2024 and 24 October 2024 respectively,
provi ding the reasons for such decision and explaining the nature of the supporting
medical information which was required to support the applica tion. She was further
advised that she had five working days to elect whether the unapproved period of
leave should be allocated as unpaid leave or taken as annual leave. If the applicant
failed to make such election, the unapproved leave would be converted to unpaid
leave and she would not then be able to convert such unpaid leave to annual leave.
The applicant was also informed of her right to lodge a grievance in terms of the
standard internal dispute resolution procedures.
[4] The applicant lodged a grievance in respect of one of the periods of leave , but
re-assessment was declined . In the letter of 27 November 2024 advising her of this
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outcome, the nature of supporting medical information for her particular condition
was fully explained. She was again given five working days to elect whether the
unapproved period of leave should be allocated as unpaid leave o r taken as annual
leave, with the same caveat.
[5] In relation to a further period of absence, the applicant was advised that if
there was no submission for temporary incapacity leave by 13 December 2024,
leave without pay wou ld be implemented.
[6] The applicant lodged another grievance in respect of both period s of leave . A
re-assessment was declined. In the letter of 9 December 2024 informing her of the
outcome, the nature of the supporting medical information was again exp lained. The
applicant was informed that the full period of 128 days would be allocated as follows:
30 days to be deducted from her annual leave, and the balance of 98 days would be
treated as leave without pay, which would be deducted from her salary mon thly
commencing January 2025.
[7] The applicant’s gross monthly salary is R42 245.30, and her nett salary,
according to her December 2024 pay advice , is R27 405.31. R6 651.08 was
deducted from her January 2025 salary and two amounts of R6 651.08 were
deducted from her February 2025 salary.
[8] In her founding affidavit the applicant said that her attorneys were assisting
her with a referral of her matter to the Bargaining Council. A letter from the General
Public Service Bargaining Council dated 12 Febru ary 2025 indicates that the
applicant’s referral of a dispute has been captured and a reference number
allocated.
The present applicatio n
[9] The application was brought as one of urgency. Urgency was disputed by the
respondent. The applicant is a single parent of a minor child. Section 34 (2) (d) of
the BCEA provides that total deductions do not exceed one quarter of the
remuneration in mone y. The February deduction exceeded one quarter. If the relief
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the applicant seeks is not granted on an urgent basis, a deduction will be made in
March 2025 and succeeding months, until she can be heard, and such deductions
might exceed one quarter of her remuneration. This is leaving aside the question of
whether or not the respondent has adopted the correct procedure to make the
deductions.
[10] I am satisfied that the matter was urgent. As was held in Bux v Minister of
Defence and Military Veterans and Others [2018] ZALCCT 21 at paragraphs [5], [6]
and [7]:
“[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 d eductions; 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 th at the matter must be dealt with on an urgent basis. ”
Discussio n
[11] This court cannot decide on the merits of the refusal of temporary incapacity
leave. That is for the Bargaining Council and any further appropriate forum . There
are no details of the dispute which has been referred to the Bargaining Council but I
assume it is whether or not temporary incapacity leave should have been approved .
If the applicant is successful in the Bargaining Council or further fora , the question of
deductions for unpaid leave falls away. If she is partially successful the total amount
of deductions will be adjusted. Either party may take the dispute further to an
appropriate for um.
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[12] The core complaint of the applicant is the refu sal to approve temporary
incapacity leave. The making of deductions is inextricably linked to this core
complaint. I raised with counsel my concern that whatever decision I make in the
present application may be in conflict with the outcome of the Bargai ning Council
proceedings, and there could be possible prejudice to either party. The matter stood
down for the parties to try to reach agreement on a postponement of the application
with an order interdicting further deductions, pending the outcome of the Bargaining
Council proceedings. Agreement was not reached. Counsel for the applicant in
argument suggested such an order, and the merits of the application itself were fully
argued.
[13] In my vi ew a stay o f further deductions pending the finalisation o f the labour
dispute is the appropriate order to make. As I said the applicant’s core complaint is
the refusal to approve temporary incapacity leave. Both parties will be heard at the
Bargaining Council or further fora. It would in my view be undesirabl e to hear
separately the correctness or otherwise of the procedure by which deductions
flowing from such refusal are made . It must be remembered that the complaint of
the applicant in this application is that the respondent has not followed the correct
procedure in making deductions. This still leaves open the right of the respondent to
make deductions. A decision on this right is still pending.
[14] The following order will issue:
1. Pending the finalisation of the dispute between the applicant and
the respondent in the General Public Service Sector Bargaining
Council under reference number GPBC174/2025, and in further
appropriate fora, the respondent is interdicted from making any
further deductions from the applicant’s remuneration in relation to
such dispute .
2. After the dispute is finalised, either party may re -enrol the
application on notice.
3. The costs of the application are reserved.
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__________________________________
J.M ROBERSON
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant: Adv M . Somandi
Instructed by : Kawondera Alex Attorneys Inc.
1 Glanville Street
Makhanda
Ref: A. Kawondera
Tel: 046 307 0046
Email: alex@kaattorneys.co.za
For the Respondent s: Adv L . Ah Shene
Instructed by : The State Attorney
29 Western Road, Central
GQEBERHA
Email: mogoventer@justice.gov.za
Ref: Nr.02/84.2025
c/o Shenxane Inc.
87 High Street
Office No. 2& 6
Fidelity Building
Makhanda
Email: office@shenxaneinc.co.za