IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: J1496/98
In the matter between:
DR M.C. SAOHATSE Applicant
and
VISTA UNIVERSITY Respondents
JUDGMENT
MARCUS AJ:
I.The applicant is a teacher by profession. She has lectured
for many years at Vista University. She has impressive
academic credentials. She obtained her B.A. at Vista
University, her B.A. Honours degree at the University of
Pretoria, an M.A. at Rand Afrikaans University and lastly, a
PhD at Unisa.
II.In September 1997, having obtained her doctorate, she
unsuccessfully applied for promotion to the position of senior
lecturer at Vista University. She was aggrieved at the
University's refusal to promote her. She alleged that lesser
qualified colleagues had received promotions but she had been
overlooked. She sought reasons for the decision not to
promote her. The Deputy Vice Chancellor (Academic) wrote to
her on 12 March 1998 in the following terms:
"I have gone back to look at your original application forms
and for the record you should know that the recommendation
from your department and faculty was in favour of your
promotion. However, the promotions Committee set down
criteria at the start of the meeting to ensure that everyone
had the same understanding of the principles to be applied.
On the basis of those criteria the Committee could not support
the recommendation for your promotion. I can assure you that
based on the information on the forms and checking back
through the audio tapes, there was nothing of a personal
nature that surfaced to possibly prejudice your application.
I should perhaps just explain to you that obtaining a PhD is
no longer the sole criteria for promotion beyond lecturer
level at Vista. Hence, you will be aware that last year and
this year people with no PhD's had been promoted to senior
lecturer. That was done on the basis of their research
output. This is the practice at many other Institutions. The
simple argument is that a good PhD should result in at least
five good journal papers and if you apply your mind to it, you
should be able to spend time repackaging your PhD to produce
publications. This is how academics make a name for
themselves and for their institutions because not many people
get to read your PhD thesis and in many respects one is
expected to have a PhD to truly claim one’s position in
academia. If you need time off or other assistance to go and
write these papers so that you can reapply this year, let me
know and we will do everything we can to assist you. I
sincerely hope this clears the issue in your mind."
III.Dissatisfied with this response, the applicant invoked the
dispute resolution mechanism created by the Labour Relations
Act 66 of 1995. The matter was ultimately settled. The terms
of the settlement agreement were as follows:
"It is recorded by the parties that:
1. The applicant, Mokgadi Caroline Saohatse, who is
currently a Lecturer A at Vista University be promoted to a
position of a senior lecturer;
2. The said promotion will be with retrospective effect
from the 1st of October 1997;
3. The respondent will pay attorneys costs on a scale
between party and party;
4. This agreement is in full and final settlement of the
claim by the applicant; and
5. The parties agreed that the settlement agreement will be
made an order of court."
On 30 July 1998 the agreement of settlement was made an
order of court.
IV.The applicant now complains that she has not been afforded
the increases in salary in accordance with the respondent's
policy. She contends that the respondent's policy requires
that her salary be increased by three notches. The applicant
does not in express terms contend that the claimed increase of
three notches was dictated by the terms of the settlement
agreement. Instead, she relies on the respondent's policy in
this regard. The policy upon which reliance is placed is
annexed to the papers and forms part of the University's
conditions of service for officers and employees. The
relevant paragraph is 3.2 and it provides:
"3.2 PROMOTION OF AN OFFICER
(a) Promotion occurs annually where applicable on 1 October.
(b) NOTCH ADJUSTMENT WITH PROMOTION
Two salary notches are normally allocated with a further
salary notch if the officer's incremental date is 1 October.
In highly exceptional cases council can allocate a further
additional salary notch.
(c) The incremental date of an officer remains unchanged."
V.In this matter there has been no replying affidavit.
Mr Mokoena, who appeared on behalf of the applicant, accepted
that the wellknown rule in Plascon Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd , 1984 (3) SA 620(A) applies. It is
appropriate that I repeat what was said in that case at
634H635C:
"It is correct that, where in proceedings on notice of motion
disputes of fact have arisen on the affidavits, a final order,
disputes of fact have arisen on the affidavits, a final order,
whether it be an interdict or some other form of relief, may
be granted if those facts averred in the applicant's
affidavits which had been admitted by the respondent, together
with the facts alleged by the respondent, justify such an
order. The power of the court to give such final relief on
the papers before it is, however, not confined to such a
situation. In certain instances the denial by respondent of a
fact alleged by the applicant may not be such as to raise a
real, genuine or bona fide dispute of fact. ....In such a case
the respondent has not availed himself of his right to apply
for the deponents concerned to be called for crossexamination
under Rule 6(5)(g) of the Uniform Rules of Court .... and the
court is satisfied as to the inherent credibility of the
applicant's factual averments, it may proceed on the basis of
the correctness thereof and include this fact among those
which it determines whether the applicant is entitled to the
final relief which he seeks.... Moreover, there may be
exceptions to this general rule, as, for example where the
allegations or denials of the respondent are so far fetched
or clearly untenable that the court is justified in rejecting
them merely on the papers...."
VI.It is appropriate that I set out the actual relief claimed
in the notice of motion. I do so, bearing in mind that what
the applicant seeks in these proceedings is in essence
compliance with an order of court. I have already set out the
terms of the settlement agreement which were made an order of
court. In the notice of motion the applicant claims the
following relief:
"1. Interdicting the respondent to comply with the court
order granted on 30 July 1998 the material terms of which are
as follows:
(i) The applicant, Mokgadi Caroline Saohatse, be promoted to
the position of senior lecturer with retrospective effect from
1 October 1997;
(ii) Compelling the respondent to accord the applicant
two salary notches and other ancillary privileges concomittant
with the promotion of the person from the position of Lecturer
A to senior lecturer with effect from 1 October 1997;
(iii) Directing the respondent to adhere to its practice
and policies as stipulated in the respondent's policy booklet
being the Vista University Conditions of Service for Officers
and Employees read with the respondent's salary scale as
revised from 1 July 1996 regarding the promotion of the
applicant;
(iv) Compelling the respondent to accord the applicant one
salary notch as the applicant's annual increment with effect
from 1 January 1996;
(v) Directing the respondent to accord the applicant one
salary notch in recognition of the highly exceptional
circumstances involved in the promotion of the applicant;
(vi) Compelling the respondent to adjust the applicant's
salary notch from R103 446,00 per annum to R120 186,00 per
annum;
(vii) Awarding the applicant costs of suit;
(viii) Granting the applicant further and/or alternative
relief."
VII.The relief sought essentially falls in two parts. The
first part of the relief is an order compelling the respondent
to comply with that part of the settlement agreement which
requires the applicant to be promoted to a senior lecturer
with retrospective effect. The second part of the relief,
which is embraced in subparagraphs (ii) (vi), all turn on
the applicant's demand for a further increase in the salary
notches to which she claims entitlement.
VIII.In her founding affidavit the applicant states the
following concerning the claimed salary notches:
"13. In terms of the respondent's conditions of service for
employees booklet at page 99, clause 3.2, where an employee is
promoted, two salary notches are normally allocated. A
further salary notch is allocated if the officer's incremental
further salary notch is allocated if the officer's incremental
date is the 1st of October and in exceptional cases Council
can allocate a further additional salary notch. In accordance
with the respondent's policies, I patiently waited for the
respondent to allocate to me a minimum of three salary notches
in accordance with the respondent's policies."
The applicant then refers to the policy which I have already
set out. The respondent’s answer to this is instructive. In
the answering affidavit, the respondent states the following:
"6.13 I have already explained that the incremental date
of the applicant is 1 January of each year and it is correct
that 'normally' a salary increase of two notches are granted
upon promotion. That increase is of course granted in the
first place if the applicable salary scale allows it but in
the final analysis granted on merit, and not as a matter of
course. The approach is that a person deserving a promotion
would normally also be deserving a salary increase but
provision is also made for exceptional circumstances where a
person can be promoted in rank but not granted a salary
increase.
6.14 The applicant was at most entitled to an increase of
two salary notches upon her promotion and not to 'a minimum of
three'. The settlement agreement and court order was to the
affect that the applicant is to be promoted with effect from 1
October 1997. In order to implement that agreement and order
the respondent had to deal with the matter as it existed
hypothetically on 1 October 1997. Viewed from this
perspective the applicant was then granted two salary notches
increase in salary immediately, that is from 1 October 1997,
and a letter to this effect was written on 5 August 1998. The
consequences of such a promotion then had to be considered,
one consequence being that on 1 January 1998 (that is the
first incremental date after the promotion of the applicant)
she would receive a further salary notch increase if she were
not at that stage already remunerated at the maximum of the
applicable scale. This was not the case and therefore the
position of the
applicant was recalculated with effect from 1 January 1998 so
as to affect a further salary increase of one notch....
6.15 The applicant did not qualify at any stage for a further
salary increase of 'a further additional salary notch'. In
view of the aforegoing I fail to understand how the applicant
view of the aforegoing I fail to understand how the applicant
could have waited for a “minimum of three salary notches”.
(emphasis added)
IX.The focus of the applicant's complaint and indeed that part
of the case which was pressed upon me by Mr Mokoena turned on
the alleged failure by the respondent to allocate to the
applicant the claimed threenotch salary increase. In this
regard the legal basis for the claim is dubious. The
applicant alleges that the respondent has failed to adhere to
the “spirit” of the settlement agreement and the court order.
X.In addition Mr Mokoena argued that the denial of the third
salary notch increase amounted to a violation of the
applicant's existing and vested rights. In my view this
argument is misconceived. Mr Oosthuizen, who appeared for the
respondent, emphasised that the applicant's demand in the
notice of motion compelling the respondent to adjust her
salary notch from R103 446,00 per annum to R120 186,00 per
annum would take the applicant out of the existing salary
scale for persons at her level at the University. This much
is made explicit in the answering affidavit to which, as I
have indicated, there is no reply. The respondent states that
were this court to give the applicant a further salary
increase over and above the salary increases which she has
already been given, it would take her out of the salary scale
to which she is entitled and would move her into the salary
scale for an Associate Professor. The answering affidavit
points out that the maximum scale for a Senior Lecturer is
R116 001,00. The next salary increase would take the
applicant beyond that level. It seems to me that in the
circumstances there is no real scope for the argument that
there has not been compliance with the terms of the settlement
agreement.
XI.Mr Mokoena, however, advances a further argument. He
suggests in his heads of argument that:
"The respondent has failed and/or refused and/or neglected to
recognise that highly exceptional circumstances exist
regarding the promotion of the applicant. Although the
respondent does not define the exceptional circumstances the
applicant feels that her promotion is highly exceptional
because she had to go through great lengths to obtain same
i.e. approaching the court and incurring legal costs."
XII.The factual foundation for this argument appears in
paragraph 17 of the founding affidavit which states the
following:
"It is clear from the aforesaid documents that I should be
allocated a minimum of three salary notches as a result of my
promotion from Lecturer A to Senior Lecturer. Putting it
promotion from Lecturer A to Senior Lecturer. Putting it
simply, my salary should move from R103 446,00 per annum to at
least R116 001,00 per annum. In fact, it is my submission
that I am entitled to a movement of four salary notches in
accordance with clause 3.3(b) of annexure N as highly
exceptional circumstances apply in my case as the respondent
clearly discriminated against myself and I had to go to great
length to obtain the aforementioned promotion."
In answer, the respondent states the following in paragraph
6.20 of the answering affidavit, and I again emphasize that
to this there is no reply:
"The applicant's attempts to bring her case within the ambit
of paragraph 3.2(b) of the policy document ... which provides
for a further additional salary notch that can be approved in
'highly exceptional cases' is nothing more than an
opportunistic attempt to turn the respondent's arm. Such an
increase is intended as a reward for excellence. If she
wanted to claim compensation for alleged discrimination (an
allegation that is denied by respondent) she should have done
so in the proper manner and without reaching a full and final
settlement on a dispute regarding her promotion."
In my view, this (together with that part of the answering
affidavit referred to in paragraph 8 above) constitutes a
complete answer to the argument advanced by Mr Mokoena
XIII.For the sake of completeness I should mention that in the
papers the applicant sought to place great store by a letter
written by the respondent's attorneys on 11 August 1998 which
stated that the "effective date for all the promotions that
were approved towards the end of last year" will be
1 January 1998. This, the applicant contended, demonstrates
that the respondent was acting in contempt of the court order.
The letter does not bear the meaning contended for. The
applicant's reliance upon this letter is also somewhat
disingenuous. She states in her affidavit that on 17 August,
that is, after receipt of the attorney's letter referred to
above, she received a letter from the respondent advising her
that she had been promoted to the position of Senior Lecturer
with effect from 1 October 1997. In argument before me Mr
with effect from 1 October 1997. In argument before me Mr
Mokoena sought to argue that the promotion had to be
considered together with the salary notches which were
claimed. I did not understand him to dispute, however, that
the actual promotion to the status of Senior Lecturer was not
given effect to with the retrospective effect as required by
the agreement of settlement. His principal contention turned
on the claim for the third salary notch increase.
XIV.In my view, even if one takes the founding affidavit on
its own, the applicant has not made out a proper case for the
relief claimed. I have indicated already that it seems that
what has caused the applicant so much pain is her contention
that the University has not acted in accordance with the
spirit of the settlement agreement. A comparison between the
relief claimed in the notice of motion and the settlement
agreement itself reveals that what is being sought, goes
beyond the express terms of the settlement agreement.
XV.Mr Oosthuizen, however, goes further. His principal
contention is that the terms of the settlement agreement have
in fact been complied with. He bases his argument on the
strength of the uncontested averments contained in the
answering affidavit the affect of which was that the
retrospective implementation of the promotion was done in the
following manner:
1. On 30 September 1997 the applicant held the position of
Lecturer A with an applicable salary scale of R71 226,00 x
3591 74817 x 4074 99261 and on which scale the applicant
was remunerated at a salary notch of R95 187,00 per year and
her promotion to senior Lecturer was ordered to be with
retrospective effect from 1 October 1997.
2. As a point of departure, the position of the applicant
on 30 September 1997 was taken and her promotion was then
implemented.
3. The retrospective promotion of the applicant to the
position of Senior Lecturer, normally accompanied by two
salary notch increases as per the general and normal policy
of the respondent, would on 1 October 1997 have brought her
of the respondent, would on 1 October 1997 have brought her
within the range of a new salary scale on which she qualified
and was granted retrospectively the usual two salary notch
increase. This resulted in an annual salary of R103 446,00
calculated by adding the following:
(a) Her old salary of R95 187,00 per year;
(b) One salary notch in the amount of R4 074,00 giving a
subtotal of R99 261,00 per year; and
(c) A second salary notch in the amount of R4 185,00 giving
a total of R103 446,00 per year.
4. The retrospective promotion necessitated a
reconsideration of the adjustments that were made to the
applicant's salary in May 1998. Because the applicant's
doctoral thesis was the basis for her retrospective promotion,
there was no justification for a further salary increase. The
said salary adjustment therefore fell away.
5. However, the retrospective promotion also necessitated a
reconsideration of applicant's position as far as her
incremental salary increase was concerned. Her promotion made
another salary scale applicable on which scale she was not
receiving the top notch or maximum salary provided for.
Consequently, she should have received a salary notch increase
on her incremental date. Due to her promotion with effect
from 1 October 1997 she was receiving an annual salary of R103
446,00 and with an increment of one notch in the amount of R4
185,00 she became entitled to a salary of R107 431,00 per year
from effect from 1 January 1998 which was granted to her.
6. A general salary increase was also negotiated with the
respondent's work force in or about September 1998. The
effect thereof was that each employee was granted a 6 percent
salary increase on the sum of his or her basic salary and
allowance. The applicant was also given the benefit of this
general salary increase on her adjusted salary of R107 533,00
and allowance of R12 600,00 per year.
7. The process of reconsideration of other events affected
by the retrospective promotion, resulted in some benefits
falling away but also in the applicant receiving some other
benefits.
As I have indicated these facts all appear in the answering
affidavit and are not subject to refutation.
XVI.In my view, therefore, the very foundation of the
applicant's case must fail. There is no substance to the
argument that she is being deprived of her existing or vested
rights. This is demonstrated by the evidence to which I have
referred which shows that exceptional circumstances justifying
a salary increase are a reward for excellence and nothing
else.
XVII.Mr Oosthuizen also argues that the material terms of the
court order as set out in the notice of motion are not a true
reflection of that order. I have set out the terms of the
settlement agreement and the relief claimed in the notice of
settlement agreement and the relief claimed in the notice of
motion. I am of the view that there is merit in this
submission. The applicant is impermissibly seeking to go
beyond that which was agreed between the parties. She has not
sought rectification of the agreement.
XVIII.Mr Oosthuizen contends further that the relief sought by the applicant is
misconceived. His argument is that there is no provision for an interdict as part and parcel
of the procedure to enforce a court order and it is thus not legally permissable to issue such
an interdict. The usual procedure for the enforcement of a court order such as the present is
contempt of court proceeding and not an interdict. In my view there is merit in this
submission, (see Herbstein & Van Winsen, The Civil Practice of the Supreme Court of
South Africa (1997) at pages 815828.) but it is not necessary for me to decide this issue.
XIX.In all the circumstances the application falls to be
dismissed. Mr Oosthuizen, somewhat faintly, suggested that
this was a case which justified an award of costs on the
attorney and client scale. The basis for his submission was
that grave and serious imputations were made against the
University's good name and reputation. I am loathe to find
that this alone would justify a punitive order or costs. In
the circumstances I am of the view that costs on a party and
party scale should be awarded. The application is accordingly
dismissed with costs on a party and party scale.
_______________
G J MARCUS
ACTING JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
DATE OF HEARING: 3 JUNE 1999
DATE OF JUDGMENT: 3 JUNE 1999
For the applicant: Mr Mokoena of MOKOENA ATTORNEYS
For the Respondent: Adv. M M Oosthuizen instructed by
Maponya Inc
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