Imatu v Khoza NO [ (Ekurhuleni MM) (JR534/2013) [2015] ZALCJHB 387 (6 November 2015) unreported per Rabkin-Naicker J.

The Labour Court reviewed but refused to set aside an arbitral award concerning the interpretation of a collective agreement and more particularly the concept of CTI (contractual to incumbent).  It was stated that the interpretation contended for by the unions made no sense.  An employee with a CTI salary scale and benefits, defined in the collective agreement, was prior to reorganising the municipal structure in a post that had been down-graded or abolished.

‘The notion that a post that is no longer in existence on the establishment of a Municipality can be [a] beneficiary of new salary scales attached to posts on the fixed  establishment, in terms of collective agreements entered into after that reorganisation, is not sensible or business like.  That post no longer exists as a financed post on a municipal establishment, it being budgeted for on a ‘contractual-to-holder’ basis.  When the incumbent leaves the service of the municipality, the expenditure on that holder will cease’.

Excerpt

[27]   I take note of the statement by Comrie AJA in Pretorius v Rustenburg Local Municipality & Others (2008) 29 ILJ 1113 (LAC) in which the court referred to the definitions in the Transvaal Agreement as follows:

“The terms ‘contractual to the holder’ and ‘personal to the holder’ are defined.  They appear at least to mean that the employee will not suffer a reduction in salary or other benefits, which could happen in the case of a demotion on other grounds.”[para 34]

[28]    The above interpretation is in line with an understanding of the CTI definition which is premised on a notion of retention of salary and benefits by specific employees.  The principle protects individual holders of posts affected by reorganisation.  It does not protect the post which has been demoted/abolished.

The present state of the law as regards interpretation has been set out by Wallis JA in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) as follows:

“Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.  Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production.  Where more than one meaning is possible each possibility must be weighed in the light of all these factors.

The process is objective, not subjective.  A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.  Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.  To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made.  The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”