THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: 2025-000072
In the matter between:
GLENDA MATHA NE AND 133 OTHE RS Applic ant
and
NATIONAL REGULATOR FOR
COMPULSORY SPECIFICATIONS First Respondent
ACTING CHIEF EXECUTIVE OFFICER:
DUNCAN MUTENGWE Second Respondent
MINISTER OF TRADE, INDUSTRY
AND COMPETITION: PARKS TAU Third Respondent
Heard: 14 January 2025
Delivered: 16 January 2025
JUDGMENT
MAKHURA , J
[1] The 134 employees of the first respondent cited as the applicant in this matter
(applicants) are members of the National Education, Health and Allied Workers’
Union (NEHAWU), who embarked on a protected strike called by NEHAWU with
effect from 20 November 2024 . The strike notice was issued on 15 November
2024. On 18 November 2024, two days prior to the commencement of the strike,
the first respondent informed the applicants that the “no -work -no-pay” principle
would apply. The strike commenced as scheduled .
[2] On Friday, 13 December 2024, pursuant to a meeting betwe en NEHAWU and
the first respondent and an agreement to refer the issues to mediation, NEHAWU
and the applicants decided to suspend the strike, with effect from Tuesday, 17
December 2024.
[3] The applicants reported f or duty on 17 December 2024 and accessed their
payslips on the same day. Surprisingly, according to the m, the first respondent
had made “deductions” from their salaries, which were labelled as “no-work -no-
pay”. One of the applicants, Glenda Mathane, requested the first respondent to
furnish her with the list of employees who participated in the strike action , were
affected by the no -work -no-pay principle, the number of days they participated in
the strike action and the amounts “deducted ” from their salaries . This information
was provided by the first respondent without listing the specific names of the
employees. The information showed that the no -work -no-pay principle was
applied for a maximum of 13 days and se t out the amounts withheld or
“deducted” per employee .
[4] The applicants were unhappy with the first respondent’s decision and they,
through NEHAWU, informed the respondents that they had resolved , following
the first respondent’s decision to “implement a No Work, No Pay ” before the
agreed mediation process could commence. This letter further withdrew the
notice of suspension of the strike action dated 13 December 2024. The
applicants resumed their strike. The first respondent informed the appli cants that
it would implement the no -work -no-pay principle with effect from 18 December
2024. The upshot of this is that for the month of December 2024, the employees
tendered their services on 17 December 2024 only.
[5] The applicants contend that when they r eceived their salaries on 20 December
2024, they noticed that the first respondent “ had deducted substantial amounts
from their salaries without prior consultation or notice or agreement or finalisation
of the mediation process ”. These “deductions”, so the applicant s further contend,
ranged between 9 to 52% of their gross salaries.
[6] On 24 December 2024, the applicants’ attorneys of record addressed a letter to
the first respondent, arguing that the first respondent made unlawful deductions
from the applicants’ salaries and misapplied the formula used to calculate the
deductions. They demanded the refund of the alleged unlawfully deducted
amounts. In response, the first respondent, through its attorneys of record,
informed the applicants that it had not deducted any amounts from their salarie s,
that it implemented the no -work -no-pay pri nciple and rejected the demand for a
refund.
[7] Aggrieved by the “deductions” and the first respondent’s rejection of their
demands , the applicants launched these proceedings, on an urgent basis,
seeking a final declaratory relief that the “deductions” are un lawful. Further, the
applicant s seek to interdict the respondents from making any deductions from
their salaries which are labelled as no -work -no-pay pending finalisation of the
mediation process. Finally, the applicants seek an order directing the first
respondent to refund all the monies “deducted” as no -work -no-pay and costs on
an attorney and client sc ale.
[8] In their founding affidavit, the applicant s contend that their urgent application
should not be misconstrued as a challenge to the principle of no -work-no-pay but
rather should be construed as an application that seeks to safeguard their rights
against unlawful deductions that flagrantly disregard the established legal and
regulatory framework. They contend that the “deductions” undermine the spirit of
the bona fide negotiations that culminated in the agreement between the parties
to engage in mediation to resolve the issues, which inc luded the no -work -no-pay
issue.
[9] The first respondent raised three points in limine – the alleged defective notice of
motion, nonjoinder of NEHAWU and lack of locus standi . The se are all technical
points with no merits . They have been addressed by the applicants and I need
not be detained by them any f urther. They are all dismissed.
[10] The substantive opp osition of the application is based on two crisp issues – the
lack of urgency and that the first respondent did not deduct any amounts from the
applicants’ salaries but instead implement ed the no-work -no-pay principle by
withholding remuneration for the 13 days that the applicants did not render their
services .
[11] The applicants ’ case insofar as the interim relief is concerned is that th e first
respondent should be interdicted from making any deductions from their salaries
pending the finalisation of the mediation process. However, there is nothing in
the papers that suggests that t he first respondent intends to make a ny
deductions from the applicants’ salaries. Further, the applicants had on 17
December 2024 withdrew their letter of suspension of the strike and resumed
their strike action. The consequence of the applicants’ decision on 17 December
2024 and their resumption of the strike action is that they reneged from the
mediation process agreement reached on 13 December 2024 . Therefore, an
interim interdict as sought by the applicants in paragraph 3 of the notice of
motion pending the mediation process that they abandoned on 17 December
2024 is incompetent. Regardless , the interim order s ought is dependent on the
Court granting the final relief declaring that the “deductions” are unlawful. Ms
Makola, counsel for the applicants, conceded that the nature of the relief sought
by the applicants is in fact final. Therefore, although the applica nts addressed the
requirements for an interim relief in their founding affidavit, the application was
dealt with as one for a final relief.
[12] Rule 38(2) of the Rules Regulating the Conduct of Proceedings of the Labour
Court1 requires an urgent applicant to set out in his or her founding affidavit the
reasons that make the matter urgent and the reasons why the relief is sought on
an urgent basis. In other wor ds, a n applicant who brings urgent proceedings
must make the necessary averments why he or she claims that the application is
urgent and why she seeks relief now and why s he claims that she cannot be
afforded a substantial redress i f the matter is brought and heard in the normal
course.2
[13] The applicants contend that some of them may be adversely affected by the
deductions , which may lead to an adverse credit record a nd their inability to
afford basic necessities. Further, they contend that because the first respondent
did not follow a proper pr ocess and acted unlawfully, “ there is no other alternative
process [they] can use internally or externally except to obtain a court order ”. The
applicants pleaded further that they would suffer irreparable harm because they
would not be in a position t o initiate legal proceedings and that in any case , such
process would be protracted.
[14] The applicants’ contentions are vague, speculative and unsubst antiated . They
have not explicitly set out the facts that render the application urgent and why
they cannot be afforded substantial redress at a hearing in the normal course.
1 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect from
July 2024 .
2 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2011]
ZAGPJHC 196 ; 2011 JDR 1832 (GSJ) at para 6.
That the proceedings in the normal course may be protracted does not on its own
render the application urgent . The contention that there may not be able to
initiate legal proceedings in the normal course is absurd because the applicants
are still employed and they were able to bring these proceedings on an urgent
basis. They are also m embers of a trade union, which could assist them in
funding the application. The applica nts have failed to show why this matter
deserves the Court’s attention urgently. The application falls to be struck off the
roll.
[15] Even if I was inclined to entertain th e application on an urgent basis, I am not
persuaded that the applicants have made out a case for a final relief. The
requirements for a final interdictory relief are trite. The applicant must establish a
clear right, a reasonable apprehension of harm or imminent harm to the right and
lack of satisfactory remedy.3
[16] The applicants seek to assert their right s in terms o f section 34 of the Basic
Conditions of Employment Act4 (BCEA), which provides that:
‘(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 re spect 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.
3 See: Setlogelo v Setlogelo 1914 AD 221 at 227.
4 Act 75 of 1997.
(2) A deduction in terms of subsection (1) (a) may be made to
reimburse an employer for los s 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;
(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 th is subsection do not exceed one -quarter of the
employee's r emuneration in money. ’
[17] They contend that the amounts allegedly not paid constitute deductions. They
further rely on the Salary Administrative Policy, which provides that the first
respondent shall make deductions as agreed with the employee in writing or as
permitted in law and that the deduction should not exceed 25% of the employee’s
gross salary. Finally, the employees rely on Article 8 of the International Labour
Organisation Convention No 95 of 1949 (ILO) , which prohibits deductions from
salaries unless permitted by law s or regulations, collective agreements or
arbitration awards or other conditions. The provisions of the Policy and the ILO
are expressly encapsul ated in section 34 of the BCEA.
[18] For the above contention, the applicants rely on the Labour Appeal Court
judgment in North West Provincial Legislature and another v National Education
Health & Allied Workers Union on behalf of Members ,5 the judgment of this Court
5 [2023] ZALAC 12; (2023) 44 ILJ 1919 (LAC) .
in National Education, Health & Allied Workers’ Union on behalf of Mamogale
and others v North West Department of Community Safety and Transport
Management and another6 and th e High Court judgment in Gqithekhaya and
others v Amathole District Municipality7. In all these judgment s, the courts dealt
with employer s who made the deduction s from salaries and who did so many
months after the strike.
[19] The matter before me is different on the facts and the first respondent disputed
that it made deductions from the applicants’ salaries . The first respondent ’s case
is that it withheld the remuneration for the 13 days the applicants were on strike
and did not render services in December 2024. It is common cause that at the
commencement of the strike, the first respondent’s payroll run had alrea dy
closed in mid -November 2024 and the employees were paid on the 25th of the
month . The next payroll run closed in mid -December 2024. It is further common
cause that th e applicant s did not render services from 20 November 2024 and
that their strike continued until 13 December 2024 and resumed in the afternoon
of 17 December 2024 .
[20] The first respondent’s contention is that it withheld the payments to the
applicants for 13 days in December 2024 because they did not render services .
In simple terms, it implemented the no -work -no-pay principle for December 2024 ,
in accordance with section 67(3) of the LRA8. Whether the implementation is right
or wrong is a different issue. The applicants suggest that the number of days and
calculations are wrong. They have however not substantiated this contention .
That the first respondent is entitled to apply or implement the no -work -no-pay
principle for December 2024 is not in dispute . The applicants cannot therefore
claim to have established a clear right . The appli cants have no right to demand
that the first respondent should not implement the no -work -no-pay principle. On
6 [2022] ZALCJHB 182; (2022) 43 ILJ 2369 (LC) .
7 [2022] 11 BLLR 1066 (ELC); (2023) 44 ILJ 627 (ECL) .
8 In terms of this provision, an employer is not obliged to remunerate an employee for services that the
employee did not re nder during a protected strike.
this basis alone, the application for an interdi ct would fail. Even if they were able
to establish a clear right which was or is or may be threatened , they have not in
my view established a lack of satisfactory remedy and the application would also
fail on this ground .
[21] The next issue to consider is costs. The employee s embarked on a protected
strike, as they were entitled to. However, they knew or ought to have known that
the strike comes with its price – the applicati on of the no -work -no-pay principle.
From the papers, they understand this principle and they claim not to challenge
it. However, the ir application directly challenged the first respondent ’s decision to
apply and implement the very same principle they claim ed not to challenge. They
approached the Court on an urgent basis where there was no urgency.
[22] They sought costs on an attorney and client scale against the respondents. They
persisted with their stance that they should be awarded costs on an attorney and
client scale if they are successful but argued that there should be no costs order
if they are unsuccessful. This is an application for payment of money based on a
contract. The Court retains its overall discretion to grant or refuse costs. Having
considere d the matter, I am persuaded that this is a matter that warrants a costs
order against the applicants in favour of th e first and second respondents.
[23] The applicants did not seek any sub stantive relief against the third respondent.
The third respondent’s opposition of the application was unnecessary and
therefore I am not inclined to make a costs order in this regard.
[24] In the premises, the following order is made:
Order
1. The application is struck off the roll for lack of urgency.
2. The 134 applicants are ordered to pay the costs of the first and second
respondents, jointly and severally the one paying the other to be absolved .
____________________
M. Makhura
Judge of t he Labour Court of South Africa
Appearances:
For the Applicant: Ms TM Makola
Instructed by : MP Mannya Incorporated
For the 1st & 2nd Respondent s: Mr M Letwa ba of Cliffe Dekker Hofmeyr Inc.
For the Third Respondent: Mr JL Basson
Instructed by: The State Attorney, Pretoria