Vumazonke v Municipal Manager and Others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | B Hartle J |
| Judgment Date | 15 December 2021 |
| Docket Number | EL 595/2018 |
| Hearing Date | 26 July 2021 |
| Court | East London Circuit Local Division |
| Citation | 2022 JDR 0424 (ECGEL) |
Hartle J:
This matter came before me on the trial roll.
The applicant, an erstwhile legal advisor in the employ of the Buffalo City Metropolitan Municipality, issued out an application to compel the respondents
Hartle J:
to pay certain leave benefits due to him as per his contractual entitlement after his resignation from the municipality at the end of February 2018. He included a prayer for an accounting of the amount after learning that what was owed to him was being withheld on the basis of a claim that certain monies were instead owing by him to the second respondent because he had purportedly been overpaid whilst in the municipality's employ.
The respondents opposed the application. Although they admitted that a nett sum of R26 423.10 was due to the applicant as leave pay, they justified their entitlement to have retained this amount because he allegedly owed the second respondent an amount of R109 448.32 based on the overpayment to him during his tenure as acting Head: Governance Compliance and Internal Audit on incorrect TASK Grade 18 instead of TASK Grade 17.
According to the respondents they had sought to engage with the applicant in order to recover the overpayment which had resulted from being remunerated on the incorrect TASK grade even before his resignation and soon after his acting appointment had come to an end, but to no avail. The end result of these discussions is that he was not prepared to agree to repay the amount back in monthly instalments as had been asked of him.
The reason for this, so the applicant clarified in his replying affidavit, is that from his point of view there had been no mistake made in paying him on TASK Grade 18 during his acting stint because the second respondent had especially contracted with him to act on this pay level, which offer he had accepted. Further, leaving aside the issue of his contractual entitlement to be paid on the agreed pay grade, he submitted that the second respondents' retention of his benefits, or set off of them against the monies due to him, could also not be brought within the ambit of the provisions of section 34 (5) of the Basic
Hartle J:
Conditions of Employment Act, No. 75 of 1997 ("BCEA") especially since he had not agreed in writing to any deductions from his remuneration neither was there any court order in place that might have authorized the set off, as it were, against the leave pay due to him.
In a late supplementary affidavit filed with the leave of the court, he put up copies of correspondence and documentation which ostensibly confirms his appointment in the acting position of Head: Governance Compliance and Internal Audit for the relevant period on TASK Grade 18. A memorandum from the Acting City Manager to the Head of Department: Corporate Services, which predates his acting appointment, authorizes him to act in the relevant capacity with effect from 1 February 2016 until further notice and recommends that he be paid an acting allowance in the said position. It does not specify the pay grade but in the letter of appointment addressed to him by the first respondent dated 6 February 2016 it is confirmed that he is authorized to act "in the capacity of Head: Governance, Compliance and Internal Audit on Task Grade 18 with effect from 1 February 2016 until further notice". Other miscellaneous acting allowance forms showing payment calculations similarly reflect the task grade level for the acting allowance as "18".
The respondents contemporaneously with their answering affidavit filed a counter application in which they pray for an order:
That the respondent (applicant in casu) be held liable to the second applicant (second respondent in the main application) for the amount of R109 448.32;
that the respondent be ordered to repay the amount of R109 448.32 to the second applicant within thirty (30) days of the granting of this order by the above Honourable Court.
that the respondent pay the costs of this application."
Hartle J:
There is no pertinent causa stated for the relief sought. The counterapplication was supported by an affidavit of the first respondent which merely asserted that during the applicant's employment with the second respondent he had acted in a position in respect of which he was paid on TASK Grade 18 instead of 17, which resulted in the overpayment. (In the respondents' answering affidavit to the main application the first respondent coincidentally attributes the overpayment to "reason unbeknown to (him) and the second respondent". Of further significance is that in addressing the issue of the supposed overpayment of the acting allowance with the applicant in writing, in correspondence dated 11 October and 2 November 2017 respectively, the second respondent only recorded the conclusion that a mistake had occurred but failed to elucidate what that mistake was.) Nothing else is asserted in the founding affidavit that would justify the remedy claimed by the respondents that the applicant simply "be held liable to the second (respondent) for the amount of R109 448.32", although the apparent motivation for the counterapplication was that the first respondent, in his capacity as accounting officer, has a "legislative and contractual duty to ensure that public funds are utilized in a proper manner"; that the municipality has been "prejudiced by the failure of the (applicant) to repay the money, which he clearly owes in respect of the overpayment made to him during his acting stint" and that, if he is not ordered to repay the amount claimed as "an overpayment" (as is claimed in the counterapplication) the second respondent will suffer irreparable harm.
The first respondent repeats the allegation in the founding affidavit that several attempts were made to elicit the applicant's acknowledgement of the overpayment (and error implicit therein) without any success. Evidently, on the assumption that they were entitled to have applied set off, they appear to have
Hartle J:
done exactly that. [1] Reading between the lines though they took no formal legal steps to vindicate the second respondent's manifestly compromised position (on their evidence), or to recover the alleged overpayment due to it, over and above retaining the applicant's leave monies that were due to him. The counterapplication before this court represents the sum total of their earnest endeavours in this respect and even in this respect they appear confused as to the basis for their alleged entitlement.
The main and counterapplication were postponed on a number of occasions for various reasons that are not relevant for present purposes. On 7 February 2019 the court made an order referring the "issues" for the hearing of oral evidence and reserved the question of costs. The terms of reference dictated by the court for the referral are stated as follows:
Oral evidence be heard on
whether or not the applicant was correctly paid an acting allowance on TASK Grade 18 during the period from 1 February 2016 to 31 May 2017; [2]
if it is found that he should have been paid on TASK Grade 17 and accordingly overpaid by R109 448.32, whether the respondents can rely on the provisions of section 34 (5) of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997); [3]
the affidavits filed of record to date serve as pleadings;
any deponent of the affidavits filed of record may appear personally to testify;
the application be and is hereby postponed sine die;
the costs occasioned by the postponement are reserved."
Hartle J:
Later, on 6 October 2020, the court ordered the parties to prepare a stated case which order appears to have been based on a consensual draft order.
A stated case was filed on 27 January 2021.
In it, the parties record that they have reached agreement on all the facts relevant for a determination of the application. They request that the application be determined on the basis of those agreed facts. [4]
The simple background facts outlined in the stated case are as follows:
The Applicant Mr Zolile Vumazonke was employed by the 2nd Respondent in the Legal Services Division. He was employed as the Legal Advisor. His Task Grade at the time relevant to this matter was Task Grade 14.
On or about February 2016, an offer was made by the Respondents to applicant to be appointed (in) an acting capacity as Head: Governance and Internal Audit. The terms of the offer made to the Applicant were as follows:
To appoint the Applicant to act as the Head: Governance, Compliance and Internal Audit Department;
The acting period was from 01st February 2016 – 29th February 2016, with a possibility of extension thereof as and when it is required and at the discretion of the 2nd Respondent;
The level for acting allowance which was offered to Applicant at the time was Task Grade 18;
The offer to act (in) the position as well as the proposed terms of acting in the position was duly accepted by the Applicant.
The acting appointment, as well as the level of acting allowance was also confirmed by the Acting Municipal Manager in a memorandum addressed to the Applicant dated 20th February 2016.
The applicant duly acted (in) the position as per agreed terms. He acted from the 01st February 2016 until 31st May 2017, his contract of acting in the position having been extended in writing by the 2nd Respondent periodically.
On the 11th October 2017, the Applicant was notified by the Respondents that he has been overpaid by the acting allowance. The Respondents stated that according to the payroll system records, he erroneously was paid an acting...
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