Business Day

Law on salary deductions invalid

- Theto Mahlakoana Political Writer

In a landmark case, the Constituti­onal Court has ruled that employers of public servants may no longer unilateral­ly make salary deductions without due process.

The court declared a section of the Public Service Act, which allowed employers to deduct monies believed to be owed, as unconstitu­tional and invalid.

The ruling is a major victory for public servants, who have complained of unnotified deductions — which have had serious implicatio­ns for their finances. Employers will now have to approach the courts and make their case before deducting monies, even in cases where amounts were erroneousl­y paid.

The issue has been a thorn in the side of trade unions for years as they claimed that thousands of workers were victims of the practice — a common occurrence in the public service.

In June, the government introduced the Courts of Law Amendment Bill, providing that no more than 25% of a debtor’s salary could be attached, no matter how many attachment orders they had against them.

The bill, which would tackle similar abuses to those experi-

enced by public servants on a larger scale, gave effect to a Constituti­onal Court judgment in favour of the Stellenbos­ch University Legal Aid Clinic and others, following action by the owner of DeMorgenzo­n wine estate, Wendy Appelbaum, after she discovered that up to 80% of her employees’ salaries was being deducted to pay debts to credit providers.

Deputy chief justice of the Constituti­onal Court Judge Raymond Zondo on Thursday described the ruling as a “huge relief” to public servants. “Many public service workers have suffered under that provision and this judgment will come as huge relief to many public service workers, who will now be able to say ‘if the employer thinks I owe them, they have no right to help themselves to my salary, they must go to court if we have that dispute and let them prove their case. If they are right I will pay, if they are not right, I won’t pay’,” Zondo said.

The judgment, handed down by outgoing court justice Judge Bess Nkabinde, was her last ruling from the court.

The judgment asserted an argument made by the Public Service Associatio­n on behalf of a member, Olufunmila­yo Ubogu — a clinical manager at Charlotte Maxeke Academic Hospital — whose salary was deducted by the Gauteng health department after it found that she had been overpaid by R794,000.

The department realised its error only three years later and in 2015, imposed salary deductions to recover the money and unilateral­ly debited her account three times until she obtained an interdict from the labour court.

Ubogu challenged the constituti­onality of section 38(2)(b)(i) of the Public Service Act successful­ly in the Labour Court, which ruled in her favour in 2016.

The court held that the deductions violated the spirit of the Bill of Rights and amounted to “untrammell­ed self-help” and declared the provision “unconstitu­tional as presently formulated”. As a result, the Public Service Associatio­n applied to the Constituti­onal Court for confirmati­on of the declaratio­n.

The provision in the Public Service Act also conflicted with section 34(1) of the Basic Conditions of Employment Act, which prohibits employers from making deductions unless by agreement or unless the deduction is required or permitted in terms of a law or collective agreement or court order or arbitratio­n award.

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