The Constitutional Court declared unconstitutional a provision in the Public Service Act entitling the government to deduct money due by an employee without any hearing. The employee had been overpaid a salary for a five year period because of a wrong grading and the Department of Health Gauteng deducted R56 257 from a gross salary of R62 581 which effectively imposed strict liability on the employee and constituted unfettered self-help.

The Constitutional Court has held in the past that self-help is inimical to a society in which the rule of law prevails. The rule of law is embodied in the supremacy clause in the Constitution, section 1(c) and section 2, that ‘law or conduct inconsistent with the Constitution is invalid, and obligations imposed by it must be fulfilled’.

The statutory mechanism of self-help was clearly unfair. The employee was entitled to have disputes resolved by the application of law in a fair public hearing before a court as permitted by section 34 of the Bill of Rights.

The court also held that the self-help provision was not equivalent to common law set-off. Set-off operates where there are mutual debts and does not operate as a matter of law.

[The case is Public Servants Association on behalf of OI Ubogu v Head of Department of Health of Health, Gauteng and Others]