J5978/00-HVDM
Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J5978/00
2001-02-02
In the matter between
Z S SIBEKO Applicant
and
COMMISSION OF CONCILIATION
MEDIATION AND ARBITRATION 1ST Respondent
2nd Respondent
3rd Respondent
HEAD OF HUMAN RESOURCES DEPARTMENT
4th Respondent
5th Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS J:
1.The applicant had been in the employ of the first respondent as a fulltime
commissioner on a fixed term contract which had expired. Under that
contract he earned R231 000 per annum. As his contract was about to
expire the respondent on 20 July 2000 made an offer for a further fixed
term contract with effect from 1 July 2000. The salary package in terms
of that contract was R200 000. The applicant would earn less than he
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JUDGMENT1
had previously earned because he was now employed as a level A, on a
lower scale, since there had been a restructure of the levels of
commissioners. Previously there were five levels and thereafter the
Board of the respondent amended the structure after consultation with
the commissioners employed by the respondent.
2.The respondent signed the contract but made submissions to the Board to the
effect that he should be remunerated at a higher salary. The board
notified him that this was not possible. This was according to the
affidavit of the managing director of the respondent, which was not
disputed by the applicant.
3.Notwithstanding the fact that the Board had stated that the applicant was
not entitled to a higher salary, he was then for a period of five months
paid the sum of R245 710,33. It is noteworthy that level A higher scale
commissioners do not even earn this amount.
4.Clearly, on the papers, and that was also contended by the respondent, the
applicant was paid this higher salary in error.
5.The respondent then notified the applicant in writing that he had been paid
this amount in error. It was pointed out to him that the respondent was
disappointed that he had not himself brought this error to the attention
of the respondent. The applicant was also informed that the amount paid
in error would be deducted from his salary. He was also requested to
furnish reasons at a later stage as to why he felt that he was entitled
to the higher amount. This he declined to do and demanded an
explanation from the respondent instead to advance reasons why he should
not be paid the higher amount.
6.It is indeed so, that in terms of the Basic Conditions of Employment Act,
an employer may not deduct amounts from the salary or remuneration of an
an employer may not deduct amounts from the salary or remuneration of an
employee without the employee's consent. Where an employee was however
overpaid in error, the employer is entitled to adjust the income so as
J5978/00-HVDM
to reflect what was agreed upon between the parties in the contract of
employment, without the employee’s consent.
7.The applicant seeks relief to the effect "that the respondent be
interdicted from interfering" with his salary. This is a very wide form
of relief and would also mean that the respondent would never be
entitled to adjust the applicant's salary.
8.The applicant has made out no case which entitles him to the relief he
seeks on an urgent basis.
9.Consequently the application is dismissed with costs.
ON BEHALF OF Z S SIBEKO : In person
ON BEHALF OF C.C.M.A. : Bowman, Gilfillan Att.
________________
E. Revelas
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JUDGMENT3