Iqram Bux v Minister of Defence and Military Veterans and Others

Col Iqram Bux, a medical practitioner and Officer Commanding of 2 Military Hospital in Wynberg, was employed by the Department of Defence since 1999. In terms of an Occupational Specific Dispensation (OSD), he was "translated" to the post of Clinical Manager in 2009 and to Senior Clinical Manager (Grade 1) instead of Manager Medical Services (Grade 1) with effect from 1 February 2012. The Department of Defence alleged this translation was incorrect and that Col Bux had been overpaid. On 31 October 2017, the Chief Financial Officer notified Col Bux that the Secretary for Defence and Military Veterans approved deductions from his salary to recoup alleged overpayments. Starting in December 2017, the Department deducted R20,397.97 monthly from his salary without his agreement, purportedly in terms of section 38(2)(b)(i) of the Public Service Act. Col Bux had not agreed to these deductions and sought to interdict further deductions following the Constitutional Court's declaration of invalidity of the subsection in the Ubogu case.

• Whether the matter was urgent
• Whether the Labour Court had jurisdiction to hear the matter
• Whether the deductions violated section 34 of the Basic Conditions of Employment Act
• Whether section 38(2)(b)(i) of the Public Service Act permitted the unilateral deductions following the Constitutional Court judgment in Ubogu
• Whether the doctrine of set-off could be invoked to justify the deductions

The application was heard as an urgent application. The respondents were interdicted from unilaterally making any further deductions from the applicant's remuneration or pension fund pay-out. The respondents were ordered to pay the costs of the application jointly and severally, the one paying, the other to be absolved.

Following the Constitutional Court judgment in Ubogu, section 38(2)(b)(i) of the Public Service Act is unconstitutional and deductions made purportedly in terms of this provision are unlawful. The BCEA applies to members of the SANDF and section 34 of the BCEA prohibits employers from making deductions from employees' remuneration without the employee's written agreement or unless required or permitted by law, collective agreement, court order or arbitration award. An unconstitutional provision cannot constitute "law" permitting such deductions. The doctrine of set-off cannot be invoked to justify unilateral deductions where there are no admitted mutual debts and where disputes regarding alleged overpayments remain unresolved.

The court expressed difficulty in understanding why the respondents persisted in opposing the application despite clear Constitutional Court authority in Ubogu, noting this resulted in further costs to the fiscus. The court also noted that although the respondents raised a jurisdictional objection, they did not pursue it with vigor and their counsel did not address it in written submissions. The court's remarks on costs reflect a view that persistence in relying on provisions already declared unconstitutional by the apex court is not a reasonable basis for opposition.

This case demonstrates the application and impact of the Constitutional Court's declaration of unconstitutionality in Ubogu regarding section 38(2)(b)(i) of the Public Service Act. It confirms that state employers cannot unilaterally deduct alleged overpayments from employees' salaries without agreement or following due process, even where they allege incorrect job translations or grading. The judgment reinforces constitutional protections against arbitrary self-help remedies by the state, emphasizing the requirements of section 34 of the BCEA. It also clarifies that the BCEA applies to members of the South African National Defence Force and that the Labour Court has jurisdiction over such employment disputes. The case illustrates the binding nature of Constitutional Court declarations of invalidity on all courts and parties, and the impropriety of state organs continuing to rely on unconstitutional provisions after such declarations.