Mncwati and others v King Sabata Dalindyebo Local Municipality

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Norman J
• Judgment Date: 22 August 2023
• Citation: 2023 JDR 3295 (ECM)
• Hearing Date: 10 August 2023
• Docket Number: 5448/2021
• Court: Eastern Cape Division

Norman J:

[1]

The 1st to 21st applicants (applicants) are employees of the King Sabata Dalindyebo Local Municipality (the municipality). They brought an application wherein they seek the following orders:

“1.

That the respondent’s failure to give the applicants information in writing about their rate of remuneration, number of hours they worked on each day they are paid at their workplace be and is hereby declared unlawful.

2.

That the respondent be and is hereby directed to forthwith give applicants information in writing about their rate of remuneration, number of hours they worked on each day they are paid at their workplace. [1]

3.

That the respondent’s action of calculating applicants’ remuneration on a formular applicable to office workers whereas they are shift workers be and is hereby declared unlawful.

4.

That the respondent be and is hereby directed to forthwith calculate applicants’ remuneration using a formular applicable to shift workers.

5.

That the respondent be and is hereby directed to forthwith work out the remuneration short paid and pay the applicants retrospectively from June 2014.

6.

The respondent be and is hereby directed ordered to pay cots of the application.

7.

Further and/or alternative relief.”

2023 JDR 3295 p3

Norman J

[2]

The application is opposed by the municipality. Mr Zono appeared for the applicants and Mr Maswazi for the municipality.

The parties

[3]

The first applicant is NOKUTHULA CYNTHIA MNCWATI describes herself as a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection. She is also a Shop-steward-Access Control Officer.

[4]

The second applicant is ELLIOT WILLIAMS a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[5]

The third applicant is MZIMASI NQADOLO a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[6]

The fourth applicant is MLINDELI BIYATA a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[7]

The fifth applicant is SIBUSISO MJALI a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[8]

The sixth applicant is LLOYD LOYISO NONTOMBANA a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

2023 JDR 3295 p4

Norman J

[9]

The seventh applicant is MBULELO GXOTA a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[10]

The eighth applicant is NELSON PATRICIA NOKILANA a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[11]

The ninth applicant is NONTANDABUZO FLY a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[12]

The tenth applicant is SICELO KATA a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[13]

The eleventh applicant is WELEKAZI PATRICIA MANGE a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[14]

The twelfth applicant is ZUZEKA CETYIWE a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[15]

The thirteenth applicant is NONTANDO NGCOTWANA a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

2023 JDR 3295 p5

Norman J

[16]

The fourteenth applicant is NELISWA GUBANCA a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[17]

The fifteenth applicant is NOLITHA NDOTSHANGA a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[18]

The sixteen applicant is ZOLEKA OSCARIA VUNDLE a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[19]

The seventeenth applicant is THABO NKWINTSHI a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[20]

The eighteenth applicant is XOLILE NICHOLAS NGQOBOKA a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[21]

The nineteenth applicant is VUYISWA NCOLA a major male South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[22]

The twentieth applicant is XOLANI ISAAC DINGISWAYO a major female South African citizen who is an employee of the municipality and an Access Control Officer attached to the Law Enforcement Section-Civil Protection.

[23]

The twenty-first applicant is NDUMISO MAZWI a major female South African citizen who is an employee of the municipality and an Access Control Officer

2023 JDR 3295 p6

Norman J

attached to the Law Enforcement Section-Civil Protection. I shall refer to the 1st to 21st applicants as (“applicants”).

[24]

The respondent is KING SABATA DALINDYEBO LOCAL MUNICIPALITY (the municipality) an organ of State within the local sphere of Government established in terms of section 12 of Local Government: Municipal Structures Act No.117 of 1998 with its place of business at Munitata Building, corner Sutherland and Owen Street, Mthatha.

Applicants case

[25]

It is common cause that the applicants are shift workers and not office workers. What gave rise to the application are allegations that, as Access Control officers, the applicants work twelve hours per day, whereas office workers work eight hours per day. In calculating their remuneration, the municipality treats them as office workers and calculates their remuneration on an eight-hour basis thus resulting in underpayment of four hours per day. The applicants complain that from June 2014 until September 2016 (as clarified in argument) the municipality used to reflect the rate of pay but thereafter stopped doing so. They dealt with the applicable rates over the years in their founding affidavit but in their replying affidavit, the applicants, attached some of their payslips where the ‘rate of pay’ was reflected. The rates are reflected as follows:

Month	Rate of pay
14/07/25	48.46
15/06/25	49.20
15/11/25	52.64
16/01/25	52.64
19/02/25	70.25

2023 JDR 3295 p7

Norman J

[26]

The applicants contend that remuneration has to be calculated as follows: rate of pay x number of hours worked x 16 days = month’s salary or remuneration. They allege that the municipality is not paying them according to the agreed formula. The other complaint is that the municipality no longer gives the applicants information in writing about their rate of remuneration, number of ordinary hours worked, number of hours worked by each employee on Sunday and public holidays; and the shift allowance rate. This, the applicants view as a contravention of the provisions of section 33 (1) (g) read with section 35 of the Basic Conditions of Employment Act No. 75 of 1997 (the BCEA).

[27]

On 13 October 2021 their attorneys of record directed a letter to the municipality demanding information in terms of those provisions to which no response was received. The applicants contend that the actions of the municipality amount to an illegality as they offend the contractual obligations between the parties.

[28]

They also allege that they have been requesting adjustments to the calculation of their salaries, but the municipality refused to do so. They relied on a memorandum submitted by their Director, Mr Kettledas, to the Director for Corporate Services who, according to them, negatively influenced the municipality, not to accede to their request.

2023 JDR 3295 p8

Norman J

[29]

For the sake of completeness the memorandum stated:

“MEMORANDUM

TO:	THE DIRECTOR CORPORATE SERVICES
CC:	CONCERNED SHIFT WORKERS
FROM:	DIRECTOR PUBLIC SAFETY & TRAFFIC MANAGEMENT
DATE:	05 FEBRUARY 2021
SUBJECT:	ENQUIRY RATE OF PAY FOR SHIFT WORKERS

The above mentioned subject bears reference.

Attached hereto find enquiry from shift workers regarding their rate of pay. The initial bone of contention is that they claim that they are working more that the regulated 40 hours per week, but that they are not compensated therefor.

Should the response be in favour of the employees concerned, it can drain the institution which is already cash strapped.

Remember it will affect the entire institution e.g your Access...