Picture: ISTOCK
Picture: ISTOCK

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.

Many public service workers have suffered under that provision and this judgment will come as huge relief 

The bill, which would address similar abuses to those experienced 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 Judge Bess Nkabinde, was her last ruling from this 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 only realised its error 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.

mahlakoanat@businesslive.co.za

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