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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, BHISHO)

                                                                                                            CASE NO:  436/2020

Date heard: 27 August 2020

Date delivered:  8 September 2020

In the matter between:

LIZO CAGWE                                                                                    1^st Applicant

YOLISWA PRISCILLA MONTSI                                                        2^nd Applicant

THOZAMA PAMELLA LWANA                                                          3^rd Applicant

NOLUNDI OSCARINE MTSI                                                              4^th Applicant

MONDE JUSTICE DANSTER                                                            5^th Applicant

SIKELELWA SINDISWA MKONDWENI                                              6^th Applicant

NOMAGCISA GOBENI                                                                         7^th Applicant

SIMPHIWE NKATSHA                                                                           8^th Applicant

TAMARA NOHLAKA                                                                              9^th Applicant

THANDUXOLO ZIMBA                                                                           10^th Applicant

NOZIBELE LOVEJOY NKATSHA                                                           11^th Applicant

MXHOSUNZIMA COLLIN NTLAMA                                                        12^th Applicant

NKOSINATHI GCEYA                                                                             13^th Applicant

NWABISA QWABE                                                                                 14^th Applicant

LULAMA MPONGOSHE                                                                         15^th Applicant

THANDEKA YVONNE RWEXU                                                              16^th Applicant

NOMANTANDE NGQELE                                                                       17^th Applicant

NOLUVUYO JOYCE MEKUTO                                                                18^th Applicant

SITHEMBELE NYAMBALI                                                                        19^th Applicant

NOSIPHO NKALITSHANA                                                                       20^th Applicant

and

MEC FOR THE DEPARTMENT OF SOCIAL

DEVELOPMENT –  EASTERN CAPE PROVINCE                             Respondent

JUDGMENT

LOWE, J:

INTRODUCTION

[1]           This matter came before me as one of urgency, Applicants seeking an interim interdict (Part A of the Notice of Motion) pending review proceedings (Part B of the Notice of Motion).

[2]           The matter is opposed by Respondent who initially set out that:

[2.1]     This Court had no jurisdiction to hear the matter;

[2.2]     The matter was in any event not urgent;

[2.3]     Applicants had not made out a case for interim relief.

[3]           In argument Respondents conceded the jurisdiction issue as to a contractual nexus arising between Applicants and Respondent, whilst suggesting that the constitutional argument falls outside this concession.  Respondent persisted in the urgency and failure to make out a case for interim relief arguments.

[4]           Having heard lengthy argument I reserved my decision – this is however urgent as appears hereafter and I have proceeded accordingly in the short time available.  As the relief is interim only and as a review must follow, it is appropriate that I say as little as possible on the review issues dealing with merits only insofar as required for the essentials of the determination of interim relief.

[5]           The interim relief sought in Part A of the Notice of Motion is as follows:

“PART A

1.         That the Applicants’ non-compliance with Uniform Rules of Court relating to form, timeframes and matters relating to service is hereby condoned and that leave is hereby granted to the Applicant to move this application as a matter of urgency in terms of the provisions of Rule 6(12) of the Uniform Rules of Court.

2.         That a Rule nisi do hereby issue calling upon the Respondent to show cause if any, before this court on 15 SEPTEMBER 2020 at 09H30 in the forenoon or so soon thereafter as Counsel may be heard why the following orders should not be made final:

2.1       The respondents decision that the applicants were on leave between the period 18 May – 20 June 2020 is hereby declared unlawful and is reviewed and set aside.

2.2       The respondent’s deduction against applicants’ salaries is hereby declared unlawful;

3.         Pending the determination of subparagraphs 2.1 and 2.2 above and review proceedings contemplated in Part B of this application the respondent is directed to deactivate and stop the deduction taking place or arranged to be taking place against applicants’ salary forthwith.

4.         Paragraph 3 shall operate immediately and as an interim relief pending both the final determination of relief in part A and or review proceedings in Part B.

5.         Due to Covid 19 Regulations, service of these papers shall also mean service by fax or email by applicants’ attorneys of record.

6.         Cost for the hearing of the interim relief shall be in the cause unless it is opposed and in that event the respondent shall pay costs thereof.”

[6]           Part B is a review of the Respondent’s decisions as to the:

[6.1]     fact that Applicants had taken leave during the period 18 May 2020 – 19 June 2020; and

[6.2]     consequent decision to make monthly deductions from Applicants’ salaries without following “the correct legal process”.

THE APPROACH TO INTERIM RELIEF

[7]           The requirements to be satisfied by an Applicant for interim relief are:

[7.1]     A prima facie right;

[7.2]     A well grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

[7.3]     A balance of convenience in favour of the granting thereof;  and

[7.4]     The absence of any other satisfactory remedy.

[8]           An interim interdict is always sought on application.

[9]           The prima facie right required constitutes prima facie proof of facts that establish a substantive law right.  If the right is clear relief must a fortiori follow.  Similarly if the issue is a legal issue.  This is determined by considering the facts as set out by Applicants together with any facts set out by Respondent which Applicants cannot dispute and to decide with regard to inherent probabilities and the ultimate onus whether Applicants will be afforded trial relief.  (This is however in this matter somewhat different on probabilities and onus as the interim relief is pending a review and not a trial.)  The facts set out by Respondent must then be considered and if they throw serious doubt on Applicants’ case Applicants cannot succeed.  In essence then the interim relief is decided on Applicants’ version unless Respondent raises facts which cast serious doubt on Applicants’ case.[1]

[10]        In respect of this exercise of a statutory power, it is required that a “strong case” is made out for interim relief and only in exceptional circumstances[2].

[11]        I will deal with the issues relevant to the remaining requisites of interim relief where necessary in due course.

THE FACTS ESTABLISHED ON THE APPROACH ADOPTED ABOVE

[12]        Applicants are all employees of Respondent and remain so.  They are Social Work Managers and Social Work Policy Managers.

[13]        During February 2019 the Applicants were evacuated from their offices at Beacon Office Park, as the building was declared a health hazard having a leak of toxic gas (formaldehyde). 

[14]        It was necessary to relocate Applicants, through the Department of Public Works, which has not as yet secured new premises on a permanent basis in this regard.

[15]        When removed, Applicants were authorized to work at home.

[16]        The nub of the dispute surrounds the issue as to the period this authority to work from home was to, or in fact, lasted.  Applicants alleged that this was initially to prevail for six months to 15 August 2019.  Respondent alleges that on 15 May 2020 this authority was withdrawn and that all Applicants were requested to “report for duty” at three separate ad hoc locations which had been secured, being “the Pick ‘n Pick” building, the ABSA building and the Dukumdana building.  I will return to this in due course as Applicants deny this alleging that they were, by letter of 15 May 2020, told to report by contacting Mr Mankayi, which they did, and were at no time informed of a place to which they must report for work.

[17]        Respondent’s allegation that Applicants’ refused to report for duty, until various demands had been met, is vigorously denied by Applicants with reference to the correspondence relevant.

[18]        Applicants allege that without guidance or instruction from Respondent as to how they would work from home, they were obliged to seek resources from Respondent’s offices nearest them with IT connections and work tools.  This however became impossible and they were forced to work from home as best they could, using their personal cellphones and data.  In answer the attitude is apparently adopted that “working from home”  is irrelevant to the application as it is the issue of “reporting for work” which is the determinative issue.

[19]        Respondent alleges that Applicants reported for duty on 27 July 2020, with which Applicants agree, insofar as at the time they were given a place to which they could report, being the Departmental Board Room.

[20]        In January 2020 Applicants raised their working from home as a grievance with Respondent.  This is not denied, let alone responded to.

[21]        That a meeting between the parties was held on 18 February 2020 is not disputed, nor that this meeting concerned accommodation for Applicants (the relevant paragraphs are not responded to at all).  It is not disputed that at this meeting Applicants were told to wait at their respective homes.

[22]        In short Respondent simply repeats generally that much of what is alleged is irrelevant as the only issue is that Applicants were “requested to report for duty but they refused”.

[23]        On 15 May 2020 Applicants were informed by letter from the Department, per Mr Mankayi’s (Director Crime Prevention and Support), that they were to report for duty, by contacting Mr Mankayi.  This letter alleged that Applicants were not working and as such the “no work no pay principle” was to be considered. 

[24]        It must be said that hereafter Applicants were “disconnected” by Respondent “on their modes of communication with effect from 18 May 2020”.

[25]        This letter alleged “unauthorised absenteeism” since 24 January 2020, and called for Applicants to “respond to the allegations on or before 22 May 2020”. 

[26]        It was clear that the complaint related to the period 24 January 2020 to date of the letter (15 May 2020), and applied to the “no work no pay principle”.

[27]        On 18 May 2020 Applicants responded in writing to Mr Mankayi pointing out their stance that they had been instructed to stay at home until office space had been secured, which had not eventuated, and that they had not been informed of such alternative workplace.  Applicants alleged having reported for duty all along, but had not been told where to report to and never had been so told.

[28]        It is to be noted that the period referred to calling for a response related to the period 24 January 2020 to date of 15 May 2020.  It was to this period that Applicants replied.

[29]        On 11 June 2020 Respondent wrote to Applicants and per Ms Baart (Head of Department) and said that “no work no pay” would be implemented from 18 May 2020 in respect of “continued unauthorized leave of absence ...”.  It was said that a disciplinary investigation would be undertaken and that they would be further informed in this regard.

[30]        A further letter of 22 June 2020 from Respondent per Ms Booi (Director: HRA) reads as follows:

“SUBJECT: IMPLEMENTATION OF LEAVE WITHOUT PAY: YOURSELF

This office is in receipt of correspondence indicating that you have absented yourself from official duty without authority 24 January 2020 (sic).  You were further instructed to report back on duty by 18 May 2020 and that the no-work no-pay principle could be considered. 

Leave without pay has therefore been implemented against yourself, for the period 18 May 2020 to 19 June 2020 amount of R96 582.77 will be deducted in 12 monthly instalments of R8 0438.54 commencing from July 2020.”

[31]         This was implemented in terms of the letter.  It is to this that Applicants object having, on their allegations, continued to work from home all along and not having been called upon to present themselves to specified premises, until 27 July 2020 when the Board Room in the Governmental Building was made available to them.  This is confirmed in Respondent’s letter of 30 July 2020.

[32]        It is apparent from the correspondence that no further explanation or response was called for subsequent to 15 May 2020, relevant to reasons why Applicant should not be paid from then forward let alone why deductions should not be made from their monthly salary.   They were asked for an explanation for the period 24 January 2020 to 14 May 2020, and not ever for the subsequent period in fact implicated, being 15 May 2020 to 19 June 2020. 

THE PRIMA FACIE RIGHT ESTABLISHED

[33]        On the above analysis the prima facie right established, on the correct approach to interim interdicts, is simply that at all times Applicants, having been asked to leave their work place and work from home, have continued to do so and that this continued without an alternative workplace being given to them until 27 July 2020 upon them being called to present themselves to Mr Mankayi on 15 May 2020 by “contacting” him.  They did so in writing on 18 May 2020 giving reasons why their absence from a workplace had been authorized and never withdrawn, with no alternative work place being provided.  The subsequent period 18 May 2020 to 19 June 2020, for which they have been held liable to have forfeited salary to be repaid by deduction over 12 months, was not a period which they had been called to further explain or justify. 

[34]        This goes to both of the Respondent’s decisions impugned in the review proceedings Part B.

[35]        The above without doubt constitutes the necessary prima facie case for Part A.  The lack of any cognisable basis for the deduction itself (non-payment) renders such deduction contrary to Applicants’ contractual entitlement to full pay, and which deduction has been implemented[3].  Further this was put in place without affording Applicants an opportunity of being heard audi alteram partem itself a serious omission[4].

[36]        The provisions of Section 34(1) of the Basic Conditions of Employment Act provides that:

“34  Deductions and other acts concerning remuneration

(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 respect 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.”

[37]        This it seems to me on the facts provides a serious difficulty for Respondents’ stance. 

IRREPARABLE HARM

[38]         Not only is the probability of harm established as required, but it follows as night follows day that the deduction of more than R8,000.00 per month which is taking place, in respect of each Applicant, indeed suffices to establish the harm requirement.  People commit to obligations on this basis of expected income, deprivation of part of this undoubtedly has the high probability of financial inability to meet obligations with resultant serious consequences.  This cannot be gainsaid.

BALANCE OF CONVENIENCE

[39]        The prejudice Applicants will suffer if the interim interdict is not granted far outweighs the prejudice to Respondent.  The deduction threatens Applicants’ financial integrity, creditworthiness and ability to support dependents.  This balance is strongly in favour of Applicants.   When taken with the prospects of success there can be no doubt that this aspect favours Applicants.

[40]        Whilst no statutory basis for this single handed deduction was argued, I consider in any event that Applicants have made out a strong case for interim relief, exceptional circumstances existing.

NO ALTERNATIVE REMEDY

[41]        Again this favours Applicants.  I cannot for a moment postulate another adequate alternative remedy, let alone such as to deprive me of my general discretion to grant or refuse the relief sought.

URGENCY

[42]        Respondent, in my view somewhat cynically persisted in the argument that the matter was not urgent.

[43]        The application was launched on 6 August 2020 affording Respondents time to file its opposing affidavits on 12 August 2020.  This was not accomplished, the affidavits being filed on 17 August 2020, and the matter was postponed on 18 August 2020 to the 27 August 2020 for argument.

[44]        In my view, having regard to what I have already set out above as to the serious consequences of a substantial deduction from salary and the impact hereof on dependants, creditworthiness and financial survival, I have no hesitation in considering urgency sufficiently established[5]. 

COSTS

[45]        As this relief is interim and on the basis of a prima facie case it is appropriate that the costs hereof be reserved for the review Court.

ORDER

[46]        In the result, an order issues in terms of Part A (only) of the Notice of Motion as follows:

1.    Applicants’ non-compliance with Uniform Rules of Court relating to form, timeframes and matters relating to service is hereby condoned and leave is granted to Applicants to move this application as a matter of urgency in terms of the provisions of Rule 6(12) of the Uniform Rules of Court.

2.    Respondent is interdicted and restrained from making deductions of salary repayments (referred to herein) from Applicants’ salaries pending the determination of the review proceedings contemplated in Part B of this application, Respondent being directed forthwith to deactivate and stop the deductions taking place, or arranged to be taking place, against Applicants’ salaries.

3.    The costs hereof (Part A) are reserved for the review proceedings.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Appearances

Obo Applicant:                      Adv Kunju

Instructed by:                        N Z Mtshabe Incorporated

                                                c/o Sithembele Zibi Attorneys, King Williams Town

Obo Respondent:                Adv M Thys

Instructed by:                        The State Attorney, King Williams Town

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