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[2025] ZALCCT 106
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Babolaeng v Sol Plaatjie Local Municipality and Others (C534/23) [2025] ZALCCT 106 (27 October 2025)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
No: C534/23
In
the matter between:
JOHANNA
LETLHOGONOLO BABOLAENG
Applicant
and
SOL
PLAATJIE LOCAL MUNICIPALITY
First Respondent
DR
TL
MABUSELA
Second Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL
NORTHERN
CAPE REGIONAL OFFICE
Third Respondent
Heard:
10 October 2025
Delivered:
27 October 2025
JUDGMENT
KAHANOVITZ,
AJ
Introduction
[1]
This is an application to review and set aside an arbitration award
handed down on 18 September 2023 under case number
NCD 062204 WECT
2107-23 by the second respondent (hereafter “the
commissioner”), acting under the auspices of the third
respondent, which found that the first respondent had not committed
an unfair labour practice.
The
evidence at arbitration
The
applicant’s case at arbitration
[2]
The applicant testified that she was employed by the first respondent
as an intern who joined the municipality in September
2018 through
the ISDG Mentorship program as a candidate Civil Engineering
Technician. Her employment ended in November 2022. She
signed a
written employment contract with the municipality.
[3]
She holds a BTECH degree and has had eight years’ professional
experience in construction project management.
[4]
She was expected to register with the Engineering Council as a
professional civil engineering technician.
[5]
This application was unsuccessful as her application had failed to
meet some of the council’s requirements. In consequence,
her
contract with the municipality had to be extended in 2021.
[6]
The written contract of employment provides that mentorship is a
process of transferring knowledge and experience from
an experienced
individual to an inexperienced mentee by providing guidance and
advice that will help to develop their career. It
also provides that
the agreement shall not be interpreted to create any expectations of
permanent appointment.
[7]
The applicant had three different supervisors. The last of which was
Ms Jele, the PMU manager. After Ms Jele left, there
was a staffing
gap in the section of the municipality in which the applicant was
employed, and she was asked to fill it. The then
municipal manager,
Mr Akharawaray, had verbally instructed her to perform Jele’s
functions.
[8]
Although she had done this, the applicant had never been paid an
acting allowance. According to her, she had performed
most of the
functions of the PMU manager. She described the function she had
performed and testified that these functions were
not similar to
those she had performed as a mentee.
[9]
She said that at some point, she had dropped out of the mentorship
program due to the fact that she was not receiving
the exposure that
she needed, and not because she was found to be incompetent.
[10]
In the absence of Ms Jele, she did not have a supervisor but reported
directly to the municipal manager.
[11]
She was aware that, in terms of clause 7.1 of the collective
agreement, it was provided that appointment into any acting
position
must be in writing. She had, however, felt it was not necessary to
ask for the appointment in writing. She thought there
was no need for
such a letter, as the municipal manager knew that she must be
compensated.
[12]
She confirmed that she was aware that for someone to validly act,
there must be on record a memo addressed to the municipal
manager
asking for (formal) approval and that in her case, there had been no
such memo.
The
municipality’s case at the arbitration
[13]
Candy
Jenneke, employed as a financial officer, was called by the
municipality. She confirmed that there was no document on record
from
the municipal manager stating that the applicant was required to act
as the Project Unit Manager.
[1]
[14]
Pierre De Villiers, the Employee Relations Manager, testified that
his understanding of the applicant’s case was
that she was
claiming compensation for her acting role as the PMU manager.
[15]
He said interns were employed for the purposes of gaining exposure
and experience. There had never been a situation where
an intern had
acted in a permanent position.
[16]
The evidence of the further witnesses called by the municipality did
not, in my view, take the matter further, and their
evidence is
accordingly not canvassed in this judgment.
The
arbitrator’s findings
[17]
The arbitrator found that he was convinced and satisfied that the
applicant executed at least 70% of the duties and functions
of the
PMU manager. He rejected the employer’s argument that interns
cannot act in higher positions as “
lame and baseless
”.
[18]
This
notwithstanding, he held that there was no evidence that the
applicant was instructed to act in this position. There was no
witness or any document proving that she was indeed acting, and the
collective agreement was clear that no one could act unless
they were
doing so in accordance with clause 7.1 of the Collective Agreement on
Conditions of Service for the Northern Cape Division
of the
SALGBC.
[2]
[19]
Accordingly, while she may have indeed executed some of the duties of
the PMU manager, she was not doing so while ‘acting’
in
the true sense of that word as regulated by the collective agreement.
In the circumstances, he found that there was no proof
by the
applicant of an unfair labour practice, and the applicant’s
referral had to be dismissed.
The
grounds of review
[20]
The applicant contends that the finding by the arbitrator that the
appointment had to be in writing cannot stand, as
allowing it to
stand ‘
would be extremely unreasonable and unfair
’,
as this would allow the municipality to escape its liability ‘
through
an overly technical approach
’.
[21]
She argues that although the municipality had received its side of
the bargain and the services performed by an acting
PMU manager, the
applicant had not received the remuneration to which she was
entitled.
[22]
In the notice of motion, review with substitution is the principal
relief sought, with an order prayed for in the following
terms:
22.1
That the first respondent had committed an unfair labour practice by
failing to pay an
acting allowance to the applicant for the period 1
November 2021 until the middle of May 2022, during which she acted in
the position
of Manager: Project Management Unit.
22.2
That the first respondent should be ordered to compensate the
applicant in an amount of
R467 707,45 as the due acting allowance,
‘
calculated at 70% of annual rate equal to the difference
between the applicant salary and the commencing notch of the salary
scale
of the post in which she acted’
.
22.3
In the alternative, she sought remission of the matter to the
Bargaining Council for arbitration
by a different arbitrator.
[23]
The
applicant contends that the arbitrator misconstrued the nature of the
referral and the issues that stood for determination.
In oral
argument, counsel for the applicant submitted that the arbitrator had
ignored material evidence and failed to apply correct
legal
principles. If, as the evidence showed, the applicant had indeed
performed the functions of an acting PMU, then he contended
that she
was, in fairness, entitled to be paid an acting allowance for
performing these functions. This figure of 70%, the commencing
notch
of the salary scale of the post in which she acted, is based on the
arbitrator’s finding that the applicant executed
at least 70%
of the duties and functions of the PMU.
[3]
[24]
The first respondent, however, submitted that the whole of the
applicant’s case ‘
is mounted on a slippery slope’
.
All three witnesses called by the employer had confirmed at the
arbitration that the applicant had not been appointed as the acting
PMU manager or had acted in this position as alleged. The applicant
was just one of several interns requiring supervision by a
qualified
engineering professional.
[25]
It would create administrative havoc in municipalities, submitted the
first respondent, if employees are able to claim
acting allowances
for work done in so-called acting capacities for which no written
record was available. The relevant provisions
of the collective
agreement applied. The fact that the applicant had conceded that the
purported appointment was not in writing
was in itself dispositive of
the application.
Acting
allowances and the ULP regime - relevant legal principles
[26]
Although
(as a local authority employee), the applicant was not a public
servant in the sense contemplated under the Public Service
Act
[4]
(PSA), the concept and definition of an acting allowance, as provided
under the PSA, provides a useful analogous explanation and
starting
point for our discussion. In
HOSPERSA
& another v Northern Cape Provincial Administration
[5]
,
the court said the following about acting allowances:
‘
The provisions of
the PSA
[14]
The second appellant is a public servant. In order to ascertain
whether or not she is entitled
to an acting allowance the first areas
to look at are the Act and the staff code which govern the terms and
conditions of employment
of a public servant, as well as her contract
of employment. It is therefore imperative that the relevant statutory
provisions be
examined with a view to ascertaining what a public
servant's obligations are vis-a-vis a direction from a person in
authority that
she or he perform additional work, and to which
reward, if any, the assumption of such additional duties would
entitle such a public
servant.
(i)
An acting appointment
[15]
The duties and obligations of a public servant in respect of an
acting appointment are set out
in s 32 of the PSA as follows:
“
Assignment of
other functions to officers and employees. - An executing authority
or the head of a department, branch, office or
institution may direct
any officer or employee under his or her control temporarily to
perform duties other than those ordinarily
assigned to such an
officer or employee or appropriate to the grade, designation or
classification of his or her post, and he or
she shall comply with
such a direction.”
It follows that a public
servant has no choice but to comply when called upon to act in a post
which is higher than the one to which
he or she was permanently
appointed. I turn now to address the question whether such obligatory
compliance is a ticket to the payment
of an acting allowance.
(ii)
The payment of an acting allowance
[16]
For the purpose of this case, there are two sections of the PSA which
go a long way towards shedding
some light on the question whether the
assumption of duties on a grade higher than a public servant's own
grade, entitles such
a public servant to a higher scale of salary
applicable to that higher post or at least to some additional
compensation or monetary
recognition for the higher and presumably
more demanding post. ..
…
[19]
A proper reading of both ss 14(3)(c) and 30(c) reveals that an acting
appointment does not per
se entitle a person who was appointed to act
to an acting allowance. There are, therefore, no statutory provisions
which give rise
to or create a right to an additional remuneration
which the second appellant contends for. However, these sections are
not inimical
to the payment of an acting allowance. None of them
states that an acting allowance will not be paid under any
circumstances. Therefore
the legislature has left open the
possibility for the employer and the employee to enter into a
contract of employment or to conclude
a collective agreement which
stipulates, as one of the conditions of employment, that additional
remuneration would be paid should
employees be called upon to act in
a higher post. This leads me to the discussion relating to whether or
not the second appellant's
contract of employment or a collective
agreement which applies to her, if any, deals with this question.
(iii)
The contract of employment and the collective agreement
[20]
Having decided that the relevant statute does not entitle the second
appellant to the acting
allowance she contends for, there remain two
other avenues to be explored to find out if they perhaps make
provision for an acting
allowance.
[21]
The introductory part of s 30 of the PSA states that 'unless it is
otherwise provided for in
his or her conditions of employment' no
employee may claim any additional remuneration in respect of any
official duty (s 30(c)).
The conditions of employment envisaged by
this section, which may or may not provide for the payment of an
acting allowance, can
be found either in the relevant collective
agreement, if any, or her contract of employment.”
[27]
Direct
reliance was not placed on the statutory regime applicable to local
authorities, but Clause 7.1 of the operative and binding
collective
agreement (quoted below) provides that in appropriate circumstances
an employee of a local authority called upon or
instructed to act in
a higher position may lay claim to the difference between his or her
normal salary and the salary applicable
to the higher post in which
he or she is acting. Furthermore, in the light of the decision in
Independent
Municipal & Allied Workers Union on behalf of Verster v Umhlatuze
Municipality & others
[6]
,
it is possible to make out a claim where the cause of action relies
on the unfair labour practice jurisdiction. There, the court
reviewed
the judicial and academic authorities on what constitutes a 'benefit'
in terms of s 186(2)(a) and the shift in the conceptualisation
of the
ambit of the unfair labour practice claim, at least in relation to
the notion that a prerequisite for bringing such a claim
is proof of
a pre-existing right. The view that initially prevailed was that
there had to be an existing entitlement in a contract,
collective
agreement or statute, but more nuanced interpretations of the scope
of an unfair labour practice concerning a benefit
were subsequently
advanced, the most plausible interpretation being that the term
'benefit' is intended to refer to advantages
conferred on employees
which do not originate from contractual or statutory entitlements,
but which have been granted at the employer's
discretion.
[28]
The court, per Lagrange J, continued to find that, once this
conceptual hurdle is overcome, it stands to reason that
an unfair
labour practice dispute over an acting allowance, in which an
employee is making the claim on the basis that it was granted
to him
or others in similar circumstances on other occasions, is a claim
that the employer has unfairly refused to confer the benefit
on the
occasion in question. This does not amount to a demand to make the
benefit obligatory in the future. It is true that, if
the employee is
successful in his unfair labour practice claim, that may clarify the
factors the employer ought to consider in
granting or refusing to
grant the benefit in the future and may mean that it will be easier
to predict when the benefit is likely
to be granted, but that does
not, in principle, make the dispute one about the creation of new
rights.
[29]
The instant
case, however, turned on a different point. This was not a case where
it was
not
in dispute that the employee was occupying an acting position, and a
limited question arose as to the exercise of a discretion
as to
whether, in the light thereof, the employee should, as a matter of
fairness, be given an acting allowance.
[7]
[30]
The relevant legal framework under clause 7.1 of the collective
agreement on conditions of service provides as follows:
‘
When an employee
is required to act in a more senior post for a period of not less
than 10 (ten) days consecutive working days,
an acting allowance at
an annual rate equal to the difference between an employee’s
salary and the commencing notch of the
salary scale of the post in
which he acts, shall be paid to such employee in addition to his
salary and respect of the period in
which she acts, provided that:
7.1.1
the employee has been duly appointed in writing by the municipal
manager or his assignee to act in a higher
post.’
[31]
Accordingly, it was contended, unless the employee had been duly
appointed in writing by the municipal manager or his
assignee to act
in the higher post, they were not acting in that post.
[32]
Direct
authority on the point was to be found in the decision of
Henry
v General Public Service Sectoral Bargaining Council and Others
[8]
,
which held as follows:
‘
[6]
The arbitrator held that the applicant was not entitled to payment of
acting allowance after
November 2004, since he was not appointed in
writing by a duly authorised person to act after November 2004. There
was no extention
(sic) of the period in writing either.
[7]
The applicant has not put before me any grounds or any concrete facts
to persuade
me to interfere with the arbitrator’s reasoning. An
acting appointment must be recorded in writing. Its existence cannot
be inferred from perceptions and invitations to meetings. Not only
ARC’s attended the meetings in January 2005. Such facts
were
not properly aired before the arbitrator. They may have been in the
unsuccessful variation application before a different
commissioner.
[8]
The Department was quite clear about the dates until which the
applicant had to act.
[9]
The e-mail relied upon by the applicant in support of his case, takes
the matter no
further. It is written by the new Regional
Co-ordinator: Communication Services (the position in which the
applicant had acted).
He states on 4 May 2005:
“
Mr Johnson (the
applicant) who was acting before will remain in the communication
component but will revert to his post as SCC external
communication
services, but will still assist with the greater section of the
workload”.
[10]
One could infer that the applicant had been doing at least some of Mr
Solomon’s work up
to the point the latter had sent the e-mail.
However, Mr Solomon had been appointed in December 2004.
There is
also no formal written extention (sic) of the acting period by an
authorised person. The aforesaid requirements in the
collective
agreement are pre-emptory. One can understand why. There has to be
certainty and proof of the exact duration of the
acting period. That
can only be achieved by formal appointments in writing, in which the
time period is unequivocally stipulated.
In large governmental
departments such a requirement is of great importance, precisely
because there are often instances where
employees would do the work
of other employees, for various reasons and due to certain
circumstances. It would create administrative
havoc if employees were
able to claim allowances for work done in acting capacities of which
no record is available.
’ (Emphasis added)
[33]
Further
authority was also relied on where it was found that, absent written
authorisation, no acting appointment took place.
[9]
[34]
The
applicant’s case however rested on a simple proposition: the
fact that the instruction was never given in writing did
not detract
from the fact that the applicant indeed acted in that position (in
the sense that she had performed the relevant duties)
and this being
so it would be grossly unfair for the employer to escape its
liability premised on its own failure to provide her
with the
relevant written instruction.
[10]
[35]
The
municipality’s case was, however, that there was no negligent
failure on its part to provide her with written instructions
to act.
She was not provided with written instructions simply because she had
never been required to act in the position in which
she claimed to be
acting. Even if it was true that she had fulfilled some or many of
the functions previously performed by the
departed Jele, it did not
follow that she had assumed an acting position.
[11]
[36]
The
employers’ witnesses testified that there had been no
fundamental change in her functions. The contract of employment
provided that she had been hired to perform at a junior level as a
mentee. Within the structures of the municipality, she could
hardly
have evolved from being a candidate Civil Engineering Technician - an
internship - employed at a salary of R21 840 a month
to Manager:
Project Management Unit at a commencing salary of R1 407 385 per
annum.
[12]
[37]
To create
certainty, the legal framework under which the municipality operated
made it compulsory for elevations to acting appointment
to be made in
writing.
[13]
As the arbitrator
correctly found, in the absence of such written authority, she was
not acting in the post in which she subsequently
claimed to act. His
decision was accordingly not reviewable. It could, therefore, hardly
be unfair for her not to be paid an acting
allowance. (It would make
little sense to have a requirement that all acting appointments must
be confirmed in writing if, notwithstanding
non-compliance with this
requirement, a municipality could still be obliged to pay an acting
allowance because one of its officials,
acting outside of the scope
of his lawful authority, made an “oral acting appointment”.)
[38]
Even if I
am wrong and it was possible to find that she was lawfully occupying
an acting position for unfairness to arise, she would
need to show
that when compared to other similarly situated people, she was
treated unfairly. There was no evidence that there
were others who
had been occupying
de
facto
acting posts through an unlawful appointment’s process who were
remunerated by the provision of acting allowance at a different
level
to her, and, therefore, to pay her less than them was comparatively
unfair. She contended that the failure to pay her at
the level of
remuneration of an acting manager PMU was unfair. The measure she,
however, used to calculate what she was owed was
based on a provision
in the same collective agreement, which required written
authorisation before any obligation to pay an allowance
would arise.
[14]
[39]
In the circumstances, the application to review the arbitrator’s
finding is dismissed. Neither party argued that
in the event of the
review being dismissed, a costs order should be made against the
applicant.
[40]
In the premises, the following order is made:
Order
1. The review
application is dismissed;
2. There is no
order as to costs.
C.S.
Kahanovitz
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant:
Adv LA Roux
Instructed
by:
Peypers
Attorneys, Bloemfontein
For
the first respondent: Adv D Babuseng
Instructed
by:
T. Kouter
Attorneys, Kimberley
[1]
Referred to by the abbreviation “PMU” in in the award. I
will accordingly also use this abbreviation in what follows.
[2]
Quoted below.
[3]
This argument appears to assume that if applicant was entitled to an
acting allowance, then that acting allowance would be calculated
by
reference to the salary of the PMU. If, so the argument ran, she was
performing 70% of the work previously done by the incumbent,
then
her allowance should be equal to 70% of the salary at the commencing
notch the PMU manager.
[4]
Proclamation 103 of 1994.
[5]
(2000) 21 ILJ 1066 (LAC)
[6]
(2011) 32 ILJ 2144 (LC).
[7]
The claim was curiously pleaded. Although an employee would, as a
matter of right, be entitled to an acting allowance under the
provisions of the collective agreement where the jurisdictional
facts are satisfied, this is not the basis on which this claim
was
brought. This was no doubt because the applicant was aware that the
necessary formalities for a laying claim to an acting
allowance had
not been satisfied, as the alleged appointment was not made in
writing. Accordingly, she based her claim on fairness
alone.
[8]
(C314/2005)
[2006] ZALC 85
(5 September 2006).
[9]
See
MEC:
Department of Health: Eastern Cape v Saville Kops and 16
others, unreported judgment case no: PA5/2014 (LAC); See also
South
African Police Services v Du Preez and Others in Re: Du Preez v
South African Police Services
(PR157/17;P226/17)
[2019] ZALCPE 3 (8 March 2019)
[10]
The applicant claimed that she had been verbally instructed to do
the work of the departed PMU by the municipal manager (who
had also
departed by the time the arbitration was heard). It was also argued
that, as this version had not been disputed with
her in
cross-examination, it had to be accepted that what she had said on
this score was true.
[11]
The arbitrator found that although in his view it could not be
disputed that the applicant had in the relevant period done most
of
the work previously done by Jele, even if this was so, she had done
it in her capacity as an intern.
[12]
Clause 5 of the pre-arbitration minute provides that the difference
between the applicant's monthly salary of R21 840 and that
of the
post in which she claimed to be acting was R95 450. In other words,
if she had been given this acting appointment, her
monthly salary
would have increased by several multiples.
[13]
The public law character of a municipality and its obligation to
adhere to all relevant checks and balances when acting as an
employer is well established. See
generally
Bitou Municipality v Minister for Local Government, Environmental
Affairs & Development Planning, Western Cape Provincial
Government & others
(2021) 42 ILJ 993 (LAC). Alleged unfairness towards an employee
should, in general terms, not found a good claim it is based
on
requiring a court to overlook restrictions imposed by law to protect
the public purse or ratepayers from abuse of public resources.
Hendricks
v Overstrand Municipality & another
(2015) 36 ILJ 163 (LAC).
[14]
While it may be that under the unfair labour practice jurisdiction
it is not a requirement that the entitlement must be sourced
in a
contractual or statutory right, it does not follow that if contract
or statute makes it clear that in particular circumstances
there
would be no such right, such rule can hardly be simply sidestepped
or trumped or ignored by the expedient of basing the
claim of
unfairness only. There may well be rare cases where a court may be
required to do that to mitigate considerable unfairness.
This is,
however, not such a case.