About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 92
|
|
Minister of Defence and Others v South African National Defence Union; Minister of Defence and Others v South African National Defence Union and Another (307/05) [2006] ZASCA 92; 2007 (1) SA 422 (SCA); [2007] 2 All SA 127 (SCA); 2007 (9) BCLR 971 (SCA); (2007) 28 ILJ 828 (SCA) (31 August 2006)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO
: 307/05
In the matter between :
MINISTER OF DEFENCE
First
Appellant
THE SECRETARY FOR DEFENCE
Second
Appellant
THE CHIEF OF THE SOUTH AFRICAN NATIONAL
DEFENCE FORCE
Third Appellant
- and â
SOUTH AFRICAN NATIONAL DEFENCE
UNION
Respondent
And in the matter between:
MINISTER OF DEFENCE
First
Appellant
THE SECRETARY FOR DEFENCE
Second
Appellant
THE CHIEF OF THE SOUTH AFRICAN NATIONAL
DEFENCE FORCE
Third Appellant
- and -
SOUTH AFRICAN NATIONAL DEFENCE
UNION
First Respondent
SIZWE NOFEMELE
Second
Respondent
____________________________________________________________________________
Before: MPATI DP, CAMERON, NUGENT,
CONRADIE & JAFTA JJA
Heard: 8, 9 & 10 MAY 2006
Delivered:
31 AUGUST 2006
Summary: Constitutional validity
of various regulations contained in Chapter XX of the General
Regulations for the South African National
Defence force and Reserve.
Neutral citation: This judgment
may be referred to as South African National Defence Union v Minister
of Defence & Others [2006]
SCA 91 (RSA)
____________________________________________________________________________
J U D G M E N T
____________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] This is the second in the trilogy of appeals referred to in
argument as SANDU I, SANDU II AND SANDU III.
1
SANDU II concerns two applications that were dealt with together by
the court below.
2
[2] In paragraphs 1.1 and 1.2 of the order that was made in Case No
19211/02 it was declared that the Minister of Defence is under
a duty
to negotiate with the South African Defence Union (SANDU) and he was
directed to negotiate accordingly. In SANDU I we found
that no such
duty exists. Accordingly, those orders ought not to have been
granted.
[3] The remaining relief that was sought in both cases concerns the
constitutional validity of certain of the Regulations contained
in
Chapter XX of the General Regulations for the South African National
Defence Force and Reserve. The Pretoria High Court (Smit
J) held that
all the contested regulations were inconsistent with the
Constitution, to a greater or lesser degree, and relief was
granted
in various forms. This appeal is before us with the leave of that
court.
[4] The contested regulations fall into two broad categories: those
that are said to limit SANDUâs constitutional right to engage
in
collective bargaining; and those that are said to offend other
constitutional rights. I will deal with the various regulations
in
those categories.
Infringement of Collective Bargaining Rights
[5] The Constitution does not distinguish between workers or trade
unions depending upon the nature of their work or the industry
in
which they function. All workers have the constitutional right to
strike and all trade unions have the constitutional right to
engage
in collective bargaining.
3
In
South African National Defence Union v Minister of Defence
4
it was held that members of the Permanent Force of the SANDF are
workers for the purposes of s 23(2) of the Constitution.
5
It follows that their trade unions have the constitutional right to
engage in collective bargaining and that their members have the
constitutional right to strike in furtherance of collective
bargaining.
[6] A right to engage in collective bargaining is of little account
without an effective means of inducing an opposing party to bargain.
We held in SANDU I that the means by which the Constitution has
protected collective bargaining is by entrenching the right to
strike,
thereby excluding a simultaneous right to judicial
intervention to regulate the bargaining process.
[7] But the right to strike, like other entrenched rights, is capable
of limitation if that can be justified under s 36 of the
Constitution. That right has indeed been limited in the military by
the prohibition on striking in regulation 6. The prohibition
on
striking is but one of a number of elements that make up a labour
rights regime in Chapter XX, which includes a process for collective
bargaining that culminates ultimately in compulsory arbitration if
voluntary bargaining fails. The mechanism of compulsory arbitration
is one that is commonly found in industries in which striking is
prohibited. As pointed out by my colleague Conradie in SANDU I,
the
threat of an award being imposed upon the parties can operate as a
powerful incentive to bargain, as an alternative to striking,
and it
plays a pivotal role in the regime that is created by Chapter XX.
[8] The regulatory regime establishes a Military Bargaining Council
(MBC) that is entitled to conclude and enforce collective agreements
and to prevent and resolve labour disputes.
6
The parties to the MBC are the South African National Defence Force
(SANDF) and any military union that exhibits a certain threshold
membership.
7
Disputes that the MBC cannot resolve through conciliation must be
referred to the Military Arbitration Board (MAB).
[9] The MAB comprises five independent persons who are appointed by
the Minister.
8
Any dispute that is referred to it must be dealt with in accordance
with the regulations and the
Arbitration Act 1965
and must be
resolved fairly and quickly with the minimum of legal formalities.
9
The MAB must deliver its award, with reasons, which is final and
binding on the parties, within 15 working days of the conclusion
of
arbitration proceedings.
10
[10] The regulations define the scope of permitted bargaining and, in
so doing, they simultaneously circumscribe the jurisdiction
of the
MBC and the MAB. Clearly the MAB may not make an award that falls
outside its jurisdiction, and conversely, it is bound to
consider all
disputes that fall within its jurisdiction. As in the case of any
arbitrator it is for the MAB to satisfy itself that
a dispute that is
referred to it falls within its jurisdiction before entering upon the
arbitration and making an award, though its
decision on that issue is
not conclusive.
11
The remedy of a party who is aggrieved by the MABâs decision to
exercise jurisdiction over a particular dispute, or conversely,
to
decline to do so, is to have the decision reviewed by a court. The
manner in which an arbitration tribunal deals with questions
relating
to its jurisdiction is dealt with more fully in
Russel on
Arbitration
22nd ed by David St John Sutton and Judith Gill paras
5-075 to 5-089 in relation to the English
Arbitration Act, but
the
principles apply equally in relation to arbitrations in this country,
and are consistent with the right of access to courts protected
by s
34 of the Constitution.
[11] A trade union does not have a constitutional right to engage in
collective bargaining on any issue at large. Counsel for both
parties
accepted that the scope of the right to engage in collective
bargaining is limited to bargaining in respect of legitimate
labour
issues. But the scope of the bargaining right is itself capable of
being limited if that can be justified under s 36.
[12] SANDU contends that regulations 19 and 36 purport to limit the
scope of that right, by excluding certain issues from the ambit
of
collective bargaining, and are thus inconsistent with s 23(5) of
the Constitution. Those two regulations are foreshadowed
by
regulation 3(c), which provides that the objectives of the
regulations are to provide for, amongst other things, âcollective
bargaining on certain issues of mutual interestâ. Regulation 19
provides as follows:
â
Military trade unions shall not have the right to
negotiate a closed shop or agency shop agreement with the employer.â
Regulation 36 is in the following terms:
â
Military trade unions may engage in collective
bargaining, and may negotiate on behalf of their members, only in
respect of â
(a) the pay, salaries and allowances of members,
including the pay structure;
(b) general service benefits;
(c) general conditions of service;
(d) labour practices; and
(e) procedures for engaging in union activities within
units and bases of the Defence Force.â
[13] The court below held that the three regulations to which I have
referred all conflict with SANDUâs right to engage in collective
bargaining by purporting to restricting the ambit of permitted
bargaining. The word âcertainâ in regulation 3(c) was declared
to
be invalid and severed from the regulation. Regulation 19 was
declared to be invalid. Regulation 36 was declared to be invalid
âto
the extent that it purports to limit the right of military trade
unions to engage in collective bargaining to the matters listed
in
subsections (a) to (e)â.
[14] To the extent that any regulation excludes from permitted
bargaining matters that fall within the ambit of SANDUâs
constitutional
right it is invalid unless the limitation on that
right is capable of being justified under s 36. Whether any of the
regulations
to which I have referred indeed have that effect depends
upon the proper construction of the regulation concerned.
[15] Regulation 3(c) does no more than set out one of the objectives
of the regulations. By itself it does not purport to restrict
the
ambit of permitted bargaining and is thus not constitutionally
objectionable.
[16] Regulation 19 is clear in its terms. The matters that it
purports to exclude from collective bargaining (the negotiation of
a
âclosed shop or agency shop agreementâ) are undoubtedly
legitimate labour issues, in respect of which SANDU is
constitutionally
entitled to bargain. Counsel for the SANDF sought to
persuade us that the exclusion of these matters from permitted
bargaining is
justified in a military establishment but was not able
to articulate precisely why that is so. Whether a closed shop or
agency agreement
is antithetical to a military establishment seems to
me to depend on the terms of the particular agreement, and in
particular on
the bargaining unit to which such an agreement applies.
While it is not difficult to envisage a closed shop agreement that is
incompatible
with a military establishment, it is also not difficult
to envisage such an agreement that is compatible with it. I can see
no reason,
in the circumstances, why a total prohibition on
negotiating such an agreement is reasonable and justifiable, and in
my view the
regulation was correctly declared to be invalid. Various
constructions of regulation 19 that might avoid the penalty of
invalidity
were debated but they cannot in my view be sustained.
[17] Regulation 36, in its terms, permits collective bargaining on a
wide range of issues that include all general service benefits,
all
general conditions of service, and all labour practices. The wide
terms in which the regulation is framed are capable of including,
but
being restricted to, all legitimate labour issues, and that is the
construction that must be preferred in order to maintain
constitutional
consistency.
12
On that construction of regulation 36, which in my view is the proper
one, it does not purport to restrict the matters on which SANDU
is
entitled to bargain to anything less than is permitted
constitutionally, and accordingly the regulation is not invalid.
[18] We are not called upon to decide precisely what matters fall
within the terms of regulation 36, nor do I think a court is capable
of doing so in the abstract. As I have pointed out above, it is for
the MBC, and ultimately the MAB, to decide (always, as pointed
out,
subject to jurisdictional review) whether a particular matter falls
within the scope of the regulatory regime, if that is contested.
[19] There is a further regulation, ancillary to the right to engage
in collective bargaining, that is also contested. It concerns
the
composition and the powers of the MAB, which, as I have indicated,
plays a pivotal role in the bargaining structure that is created
by
the regulations. Regulation 73 provides that the MAB comprises âfive
independent persons appointed by the Ministerâ and does
not provide
for an appeal against its awards. In both respects the regulation is
said by SANDU to be invalid. First, it was contended
that persons who
are appointed by the Minister are liable to be partial towards the
SANDF, or at least to be perceived as partial
to the SANDF. In my
view that submission misconstrues the effect of the regulation.
Appointments to the MAB must necessarily be made
by the Minister
responsible for the department concerned. But the persons whom he
appoints must be objectively independent, and seen
to be independent,
and that is a justiciable requirement. The fact alone that the
Minister makes the appointments is in those circumstances
not
objectionable. Secondly, it was submitted on behalf of SANDU that the
regulation is defective in that it fails to allow for an
appeal
against a decision of the MAB. Where a tribunal has a membership of
five I see no grounds for finding that it is constitutionally
impermissible for that tribunalâs decision to be final.
The Remaining Regulations
[20] Some of the remaining regulations that came under attack are in
conflict with one or other constitutional provision and the
dispute
in relation to those regulations centred upon whether the limitations
were justifiable under s 36. In justification
of those
limitations the Minister relied on the special nature of a military
establishment like the SANDF. Although the nature of
that
establishment was not fully articulated in the evidence there are
certain features of the SANDF which a court is capable of
taking
judicial notice of, and those features are illuminated further by the
constitutional obligations of the SANDF, the provisions
of the
Defence Act 2002
, and the Military Discipline Code.
[21] The SANDF, in common with most standing military establishments,
functions within a hierarchical command structure. Strict obedience
to lawful orders and professional respect for those in command is
required within that structure. Those principles are reflected
in s
200(1) of the Constitution, which requires the Defence Force to be
âstructured and managed as a disciplined military forceâ,
and in
various provisions of the Code. In order to engender public
confidence the SANDF must necessarily not be or be seen to be
aligned
with any faction or special-interest group in society. What also
needs to be borne in mind when assessing the validity of
certain of
the regulations is that the regime for collective bargaining within
the military is one that calls for disputes to be
settled by rational
argument rather than by the assertion of collective force. What might
be appropriate in the context of bargaining
that allows for
collective action will not necessarily be appropriate in the context
of military bargaining.
[22] SANDUâs objection to regulation 8(b)
13
is that it precludes its members from assembling, demonstrating and
picketing in relation to matters concerning either the employment
relationship with the Department of Defence or any matter related to
the Department of Defence. It was submitted that that prohibition
offends the right to assemble, to demonstrate, to picket and to
present petitions that is entrenched in s 17, offends the right to
freedom of expression in s 16(1), and offends the right to
participate in the activities of trade unions in s 23(2)(b).
[23] Regulation 8(b), properly construed, relates only to public
assembling and does not preclude members of SANDU from assembling
in
private for the purpose of concluding union business. It is
antithetical to engendering public confidence in a disciplined
military
force that there should be public displays of divisions that
might exist within the force, and in my view the limitation that the
regulation imposes is constitutionally lawful.
[24] Regulation 13(a)
14
is said by SANDU to conflict with the right of every trade union to
form and join a federation (s 23(4)(c)) and the right to freedom
of
association (s 18). The principles of the ILO Committee on Freedom of
Association articulate the right of a trade union to join
with others
as giving âexpression to the fact that workers or employers are
united by a solidarity of interests, a solidarity which
is not
limited either to one specific undertaking or even to a particular
industry, or even to the national economy, but extends
to the whole
international economy.â
[25] Members of the SANDF owe their allegiance to, and only to, the
Republic and its Constitution, and the command structure of the
SANDF. The regulation aims at preventing the forging of alliances
that are in conflict with, or that might be seen to be in conflict
with, those allegiances, which in my view is no less than is required
in the SANDF. In my view the limitation is both reasonably
and
justifiably required to maintain public confidence in the SANDF and
the regulation is not invalid.
[26] Regulations 25(a) and (b),
15
and regulation 27, entitle a member of a union to assistance from
trade union representatives in disciplinary, grievance and other
proceedings, but preclude the right to representation. The exclusion
of that right, it was submitted on behalf of SANDU, offends
the
various rights entrenched in sections 23(1), 25(b), 27(b), and 34 of
the Constitution.
[27] Discipline in the SANDF is maintained through the application of
the Military Discipline Code,
16
and in accordance with the provisions of the
Military Discipline
Supplementary Measures Act 1999
. Disciplinary offences are dealt with
either, at the election of the member, in a disciplinary hearing
conducted by a commanding
officer, or in a trial before a military
court. Where a member is tried by a military court he or she is
entitled to legal representation
of his or her choice at his or her
own expense, or to military defence counsel provided at the expense
of the State.
17
In relation to all disciplinary proceedings, including those before a
military court, the regulations allow for assistance by a trade
union
representative. I do not think the regulation, insofar as it relates
to disciplinary proceedings, conflicts with the Constitution.
Adequate representation is allowed to members in such proceedings and
I see no reason why that should necessarily extend to trade
union
representation in relation to matters of military discipline.
Grievances, on the other hand, are dealt with in writing through
the
chain of command.
18
The failure to allow representation, as opposed to assistance, by a
trade union representative in relation to a process that takes
place
only in writing, does not seem to me to offend any of the
constitutional provisions upon which SANDU relied.
[28] Regulation 37 prohibits trade union activities in the course of
military operations or while members are undergoing military
training.
19
SANDU contended that these restrictions conflict with the rights of
workers and trade unions that are entrenched in s 23. It
submitted, in addition, that interference with military operations
and training is avoided by the provisions of regulation 39,
20
and that in those circumstances the absolute prohibition on trade
union activities being conducted during those times is overbroad.
I
do not think that the rights relied upon by SANDU encompass a right
to engage in trade union activities at any time at all. Merely
to
restrict the occasions upon which members may engage in trade union
activities does not seem to me to conflict with their s 23
rights.
[29] Regulation 41 provides for the appointment by the Minister of a
Registrar of military trade unions to exercise the powers and
perform
the duties provided for elsewhere in the regulations. Regulation 53
confers the power on the Registrar to withdraw the registration
of a
military trade union in specified circumstances. SANDU contended that
regulation 41 violates the right to fair labour practices
(s 23(1))
and the right to fair administrative action (s 33) insofar as it
allows for the appointment to be made by the Minister.
Allied to
that, SANDU sought an order setting aside the appointment of the
incumbent of that position at the time the application
was launched.
21
In my view neither of those claims has merit. The Registrar is an
administrative official whose powers and duties are prescribed,
and
whose conduct in carrying out those functions and exercising those
powers is subject to judicial review. The appointment of that
functionary by the Minister does not conflict with the rights that
were relied upon by SANDU, and no proper grounds existed for setting
aside the appointment of the incumbent of that position. The
objection to regulation 53 was that it was said to authorise the
Registrar
to de-register a union without first allowing the union to
be heard. I do not think that is a proper construction of the
regulation.
The ordinary rules of natural justice, including the
right to be heard, apply to the exercise of the Registrarâs powers
under the
regulation, and in those circumstances the regulation does
not conflict with the Constitution.
[30] In summary, only regulation 19, in my view, is constitutionally
invalid. It follows that the appeal must succeed except to that
extent.
[31] The incidence of the costs of this appeal lies within the
discretion of this court. It has for long been held by this court
that in general the successful party in an appeal is entitled to his
or her costs of the appeal in the absence of circumstances that
justify a departure from that general rule. Although the appeal
focused on constitutional issues I do not think that that is
sufficient
reason to depart from the general rule in the present
case. Those issues arose in the context of a regulatory regime that
is of
peculiar interest to the parties and has no broader social
significance. I also see no other reason to depart from the general
rule.
What has been decisive in the exercise of my discretion is
that the appellant has been substantially successful, in that my
decision
(by which I mean my conclusion rather than the reasoning
that has led to it) substantially favours the appellant. In view of
the
fact that the order of the court below is to be altered, which is
the basis upon which its decision relating to costs was made, it
is
open to this court to reconsider the order that was made by that
court relating to costs. Bearing in mind the wide scope of the
applications, and SANDUâs limited success in those applications, in
my view no order should be made in relation to the costs in
the court
below.
[32] Accordingly the appeal is upheld with costs, including the costs
of two counsel. The orders of the court below are set aside
and
substituted with the following:
âRegulation 19 in Chapter XX of the General Regulations for the
South African National Defence Force and Reserve, published in
Government Gazette 20376 dated 20 August 1999, is declared to be
invalid and is set aside. Otherwise the applications are dismissed.â
_______________
R W NUGENT
JUDGE OF APPEAL
MPATI DP )
CAMERON JA ) CONCUR
CONRADIE JA )
JAFTA JA )
1
The judgment of the court below is reported at
2004 (4) SA 10
(T).
2
Case No 17687/02 and Case No 19211/02
3
Sections 23(2)(c) and 23(5) respectively.
4
[1999] ZACC 7
;
1999 (4) SA 469
(CC).
5
Para 30.
6
Regulations 62 and 63.
7
Regulations 64 and 68.
8
Regulation 73.
9
Regulation 75(1) and (2).
10
Regulation 77.
11
See, for example,
Harris v SA Aluminium Solder Co (Pty) Ltd
1954 (3) SA 388
(D&CLD) 388F-G;
Interciti Property Referrals
CC v Sage Computing (Pty) Ltd
1995 (3) SA 723
(W) 727C-E;
12
Van Rooyen v The State
2002 (5) SA 246
(CC) para 88, and cases
there cited.
13
âMembers have the right to peaceful and unarmed
assembly, demonstration, picket and petition, and to present
petitions in their
private capacity: Provided that such right shall
not be exercised â
(a) while in uniform or wearing any part of a uniform
or displaying any insignia linked to the Defence force, in a manner
which
indicates in any other way employment in the Defence force or
the Department of Defence; or
(b) in respect of any matter concerning either the
employment relationship with the Department of Defence or any matter
related
to the Department of Defence.â
14
A
military trade union shall not affiliate or associate with:
(a) any labour organisation, labour association, trade union or
labour federation that is not recognised and registered;
15
â25. A
military trade union representative has the right to:
(a) at the request of a member, assist the member
with respect to grievance and disciplinary proceedings, but not to
representation;
(b) at the request of a member, assist the member in
redressing any alleged unjust administrative action or unfair labour
practice
through the use of the office channels for redressing such
alleged unjust administrative action or unfair labour practice;
â27. Military
trade unions may â
(a) assist their members with respect to grievance
procedures, including the formulation of grievances; or
(b) assist their members with respect to any
disciplinary hearings and military court proceedings,
Provided that such assistance shall not include representation by
an official, office bearer or military trade union
representative.â
...â
16
First Schedule to the Defence Act 1957.
17
Section 23.
18
Section 61
of the
Defence Act 2002
.
19
â37 (1) No member may participate in the activities of a military
trade union while participating in a military operation including
operations in fulfillment of an authorized international obligation
as contemplated in section 201(2)(c) of the Constitution or
military
exercise, undergoing training as an integral part of a military
operation or during military training.
(2) No military trade union may liaise or consult with its members
whilst such members participate in a military operation or
exercise,
undergo training as an integral part of a military operation or
during military training.â
20
â39 A military trade union shall not undertake or support any
activity which may impede military operations, military exercises,
training during military operations or exercises or the preparation
for military operations or during military training.â
21
We were informed from the bar that the person concerned no longer
holds that position.