About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2012
>>
[2012] ZASCA 109
|
|
Minister of Public Service and Administration v Ngwenya (645/2011) [2012] ZASCA 109 (29 August 2012)
Not reportable
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 645/2011
In the matter between:
MINISTER OF PUBLIC SERVICE
AND ADMINISTRATION
.................................................................
Appellant
and
MIRRIAM JABULILE NGWENYA
.............................................
Respondent
Neutral citation:
Minister of Public Service
and Administration v Ngwenya
(645/11)
[2012] ZASCA 109
(29 August
2012)
Coram:
MPATI P, NUGENT, PONNAN, MALAN and WALLIS
JJA.
Heard
: 23 August 2012
Delivered
: 29 August 2012
Summary:
Resolution of the
Public Service Bargaining Council and Public Service Dispensation
Determination – interpretation –
jurisdiction of high
court – power of court to order amendment of collective
bargaining agreement and consequent determination.
ORDER
On appeal from:
Gauteng North High Court (Webster
J sitting as court of first instance) it is ordered that:
The appeal is upheld with costs and the order of the
court below is altered to one dismissing the application with costs.
JUDGMENT
WALLIS JA (MPATI P, NUGENT, PONNAN and MALAN JJA
concurring)
[1] Ms Ngwenya, the respondent, is employed by the
Department of International Co-operation and International Relations.
Early in
2011 she was told that she had been posted to the South
African diplomatic mission in Norway, which would require her to live
in
Oslo for the following four years. She wanted to take her two
grandchildren, the children of her two daughters, with her, because
as the only family member in employment she had been responsible for
their maintenance and upbringing. In order to facilitate this
she
entered into parental rights and responsibilities agreements, under
s 22 of the Children’s Act 38 of 2005,
with her
daughters in respect of her grandchildren, which permitted her to
take them to Norway and to arrange for their education
and religious
upbringing as well as obliging her to maintain them.
[2] On the footing of these
arrangements Ms Ngwenya claimed to be entitled to receive in respect
of each of the grandchildren the
children’s allowance afforded
to persons in the foreign service who are appointed to posts abroad.
The Department of
International
Co-operation and International Relations
referred
the application to the Department of Public Service and
Administration, which is the department responsible for issues
relating to the benefits of public servants. It rejected the request
because the relevant collective agreement and ministerial
determination did not permit Ms Ngwenya to receive the children’s
allowance. Ms Ngwenya accordingly instituted the present
proceedings
to obtain relief directed at securing her entitlement to the
allowance in respect of her grandchildren. She succeeded
before
Webster J and the Minister of Public Service and Administration
(the Minister) appeals with his leave. Ms Ngwenya has,
however,
decided not to participate in this appeal.
[3] When members of the public
service are posted to South Africa’s foreign missions abroad
they are entitled to receive certain
allowances designed to ensure
that they are able to perform a service and maintain a standard of
living commensurate with the image
which the government wishes to
project abroad. The nature and extent of these allowances is
negotiated in the Public Service Co-ordinating
Bargaining Council and
embodied in resolutions that are collective agreements in terms of
s 214
of the
Labour Relations Act 66 of 1995
. The resolutions
are then incorporated in determinations issued by the Minister in
terms of s 3(4)(b) of the Public Service
Act, 1994.
1
In the present case the relevant
resolution is resolution 8 of 2003, as amended by resolution 1 of
2008. The original Foreign Service
Dispensation Determination was
issued with effect from 1 December 2003 and was amended in accordance
with resolution 1 with effect
from 1 April 2010.
[4] Resolution 8 of 2003 provides that foreign service
officials posted abroad are entitled to claim and receive a
children’s
allowance in respect of all dependent children. A
dependant child is defined as meaning ‘a biological or adopted
child or
a stepchild for whose care the employee is legally
responsible’. That definition was incorporated in the
determination published
by the Minister and was unaltered by the
changes brought about by the amendments agreed upon in 2008.
[5] Ms Ngwenya recognised that her situation in relation
to her grandchildren did not fall within this definition. She
accordingly
asked the high court for an order amending the definition
in both the resolution and the ministerial determination by
including,
after the reference to a stepchild:
‘
a child whereof the parental
responsibilities and rights agreement has been registered with the
Family Advocate or has been made
an order of the High Court in terms
of Section 22 of the Children’s Act 38 of 2005.’
The high court granted that order, subject to a
condition that its order would remain in force until such time as the
Public Service
Co-ordinating Bargaining Council had re-negotiated the
definition. The judgment is silent on what was to happen if it had
been
re-negotiated on the same terms or at least on terms that did
not cater for persons situated such as Ms Ngwenya.
[6] Ms Ngwenya did not ask the high court to construe
the resolution and ministerial determination in a way that would
include her
situation. She simply asked the court to amend them. Her
basis for doing so was to say that the Department of Public Service
and
Administration adopted an incorrect approach and ‘shows
very little appreciation for the predicament that my grandchildren
and I find ourselves in and can never be in the best interests of my
grandchildren’. Although she made some reference in
her
affidavit to both the Children’s Act and the constitutional
rights of children, she failed to point to any provision
of the
former that entitled her to the relief she sought and mounted no
constitutional challenge to either the resolution or the
determination. In the circumstances her case lacked any discernible
legal foundation.
[7] It is unnecessary to cite authority for the
proposition that courts do not have the power to amend contracts or
collective agreements
or to direct ministers of state to amend the
proclamations they issue in the absence of some statutory or
constitutional ground
for doing so. A reading of the judgment
suggests that the judge was moved to grant the order that he did by a
sense that Ms Ngwenya’s
situation was anomalous in the light of
the fact that an adopted child fell within the definition and he
regarded the arrangements
she had made as analogous to adoption. That
is not a legal basis for the grant of the relief that she was
seeking. It may provide
a reason for the parties to the collective
agreement to negotiate an amendment of the definition but that is for
them, not the
courts, to determine.
[8] The appeal must accordingly be upheld and the order
of the court below replaced by one dismissing the application. Those
orders
carry with them orders for costs but I see no reason why those
costs should include the costs of two counsel. The case is not of
such complexity as to warrant the Minister taking that precaution.
Accordingly the appeal is upheld with costs and the order of
the
court below is altered to one dismissing the application with costs.
M J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant: B R Tokota SC (with him M Gwala)
Instructed by:
State Attorney, Pretoria and Bloemfontein
For respondent: None
1
The
Public Service Act, 1994 is contained in Proclamation 103 published
in Government Gazette 15791 of 3 June 1994.