Since the lockdown started, Judge van Niekerk, doyen of Labour Court judges, has had his patience tested by employers and government.
First Gwede Mantashe did not want to make mining health and safety regulations for mineworkers returning to work during COVID-19. Then SAA's liquidators tried to start retrenching SAA staff before they even had their business rescue plan in place. In the latest test, Denel just didn't pay its staff for three months.
We have two questions in this regard, and only one is rhetorical:
1. Did Denel really just make its employees go to court for their salaries?
2. Is this judgment actually that good for the Denel employees?
First, the judgment does not affect all Denel employees.
The two unions that brought this case were Solidariteit and UASA. The other union at Denel is NUMSA, which represents, uh, let's say a different demographic of worker.
This judgment does not apply to NUMSA's members. We just hope that NUMSA's members are unaffected by the non-payment on the basis that NUMSA has been negotiating separately and has secured payment in the past through negotiations. The last we heard was of an agreement at the end of May that salaries for that month would be paid. By contrast, not all of the Solidariteit and UASA members received their salaries in May.
Second, the judge refused to order future salary payments, so if Denel fails to pay the Solidariteit and UASA members for August, the members will have to bring a brand new court application, from scratch.
Was Judge van Niekerk correct, or should he have ordered he payment of future salaries to save the trade unions returning to court?
To get a court order for something in the future (an interdict), the main things to show a judge are that you have an apparent right to the thing you are asking for, and a legitimate fear that this right will be violated.
The reason why Judge van Niekerk refused to give the Denel employees an interdict for the future payments of their wages was not because they could not show a legitimate fear and Judge van Niekerk thought they were just being paranoid. In fact, he acknowledged this was a real fear.
The problem was that the Denel employees could not show that they had an apparent right to their salaries in the future.
Was this bad lawyering or bad law?
Have you ever heard of a boss paying workers before they go to work?
Salaries or wages are payments made only after the work is done or at least after services are tendered by the worker.
The law that follows is that workers do not have a right to wages until they have worked or tendered their services.
So, hypothetically, even if workers know with all certainty that their boss is not going to pay them in August, they still have to work in August to earn their right to the payment, then they will then have to go to court to secure it, after enduring a period without income as they wait for a court hearing. (Presumably once they win their case and get their wages, they are then expected to pay it to their lawyers.)
And that is why Judge van Niekerk could not order future salary payments in the Denel case.
And that is why no judge can ever order future wage or salary payment to workers in any case.
Comments