Picture: ISTOCK
Picture: ISTOCK

On Thursday, the Constitutional Court confirmed that a section in the Public Service Act‚ which permitted an employer to make unilateral deductions from an employee’s salary‚ was unconstitutional.

The Court confirmed the order passed by the Labour Court in January‚ which concerned a health manager who was erroneously overpaid for a number of years.

Any law which is declared unconstitutional by a lower court has to be confirmed as such by the Constitutional Court.

Itunu Ibogu‚ a senior administrator at Charlotte Maxeke Hospital‚ found herself owing the Gauteng Health Department close to R800‚000 after being erroneously appointed in the wrong position in 2010. It took the department five years to discover the error. A letter was sent to Ubogu in September 2015 explaining how‚ in the process of her redeployment‚ "you were instead‚ erroneously appointed".

Ubogu was advised that the amount owed by her to the department was R794‚014.

When the department deducted part of her salary to settle the bill‚ Ubogu’s union‚ the Public Servants Association (PSA)‚ approached the Labour Court on her behalf.

There was a dispute before the Constitutional Court on whether the Labour Court had jurisdiction to strike down legislation‚ other than that within its jurisdiction. In a majority judgment, Justice Bess Nkabinde said the Labour Court was a court of similar status to that of the High Court.

"The Labour Court is‚ in terms of … the Constitution‚ a Court of similar status as a High Court. It may thus make an order of constitutional invalidity of an Act of Parliament‚ which has no force unless it is confirmed by this Court in terms of … the Constitution‚" Nkabinde said.

In confirming the invalidity of Section 38(2)(b)(ii) of the Public Service Act‚ Nkabinde said the section undermined a deeper principle underlying the country’s democratic order. "The deductions in terms of that provision constitute an unfettered self-help — the taking of the law by the state into its own hands and enabling it to become the judge in its own cause."

Nkabinde referred the matter back to the Labour Court to determine the disputes between the PSA and the head of the Gauteng Health Department, to decide whether the employee needs to refund the money to her employer.

"The disputes include the correctness of the recovery of the amounts allegedly overpaid to Ms Ubogu and whether the translation of her position as Clinical Manager: Medical affected her starting package on the new position."

Nkabinde also ordered the Public Service Minister to pay the unions’ costs.

In a lone, dissenting judgment‚ Justice Chris Jafta said the Labour Court was not empowered to strike down the legislation, saying, "While it is true that deductions made on Ms Ubogu’s salary may have violated her fundamental rights and, as a result, the Labour Court had jurisdiction to entertain that dispute‚ it did not follow automatically that the Labour Court could declare invalid the Act in terms of which the deductions were effected."

Nkabinde will be retiring at the end of the year after serving 12 years as a justice of the court. A formal court session was held in her honour on Thursday.

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