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[2009] ZAGPPHC 121
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Police and Prisons Civil Rights Union v Minister of Safety and Security and Another (23157/2007) [2009] ZAGPPHC 121; (2010) 31 ILJ 556 (GNP) (28 September 2009)
IN
THE HIGH
COURT
OF
SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE
NO: 23157/2007
In
the matter between:
POLICE
AND PRISONS CIVIL RIGHTS UNION APPLICANT
AND
MINISTER
OF SAFETY AND SECURITY FIRST RESPONDENT SOUTH AFRICAN POLICE SERVICE
SECOND RESPONDENT
JUDGMENT
MAVUNDLA
J.
[1]
The crisp questions in this matter are: firstly, whether members of
the second respondent undergoing training as student constables
are
"workers" as contemplated by section 23 (2) of the
Constitution and "employees" as defined in the Labour
Relations Act 66 of 1995 (The LRA); secondly, whether the applicant
is entitled to recruit such student constables as its members
and
whether the student constables are entitled to join the applicant as
its members.
[2]
It needs mention that the applicant contends that these student
constables are workers and that they are entitled to join it
as
members and that it is entitled to recruit them as its members and
that a declaratory order to that effect be issued. The respondents
contend otherwise.
[3]
Due to a combination of various factors, more in particular, the
overwhelming work load in this division, it has not been possible
for
me to have this judgment prepared much earlier. I am however
constrained to apologize for the delay.
[4]
I am indebted to counsel of the respective parties for the heads of
argument they furnished me with. My not repeating their
submission
in detail is in no way suggesting that their submissions were
irrelevant. I have nonetheless applied my mind to
those submissions.
[5]
I am of the view that student constables are not workers, as
envisaged in the LRA. I am further of the view the applicant has
no
rights to recruit student constables to join it as its members. I
will now proceed to set out the basis upon which I arrive
at the
aforesaid view. However, before doing so, I need firstly to deal with
the preliminary point of
locus
standi
raised
on behalf of the respondent.
[6]
It has been submitted by Mr. Kennedy, on behalf of the respondents,
that the applicant lacks the requisite
locus
standi to
advance
the argument that the student constables fall within the definition
of "employee" in section 213 of the LRA and
under common
law, and are also "workers" as contemplated in section
23(2) of the Constitution. Mr Kennedy further contends
that the
applicant relies on the expanded grounds of section 38 of the
Constitution and lacks
locus
standi
because
the LRA is the legislation envisaged and it gives effect to the
rights contained in section 23 thereof and the applicant
cannot place
reliance thereon. It is further submitted by Mr. Kennedy that the
applicant has not followed the procedural requisites
as envisaged in
section 23(2) of the Constitution. In this regard he refers to the
matter of
Permanent
Secretary, Department of Welfare, Eastern Cape and another v Ngxuza
and
others
.
1
He submits that the application must therefore be dismissed on these
grounds alone.
[7]
I do not agree with the submission that the applicant does not have
locus
standi,
as
contended herein above. The approach in this matter need not be a
simplistic and traditional one, seen primarily from the perspective
of the interest of the student constables and require joinder of the
student constables.
2
It needs to be appreciated that student constables, are as transient
as the duration of their training, they will come and go,
but the
structure through which they are siphoned into the police force will
always remain. To insist that they must be joined
is not pragmatic.
[8]
The constable students are the applicant's potential members. The
interest of the applicant lies in having this right to recruit
these
student constables, properly clarified. The applicant cannot recruit
these students if there is no clarity on this aspect.
The student
constables cannot join unions unless this issue is clarified.
3
The interest of the applicant and that of the student constables are
in my view, inextricable bound. In my view, the applicant
has a
constitutional right to bring these proceedings.
4
[9]
I am further of the view that the need to have clarity on this aspect
is also for the general public's interest.
5
In the result, I hold the view that it is not necessary for the
applicant to join the student constables to bring these proceedings.
I therefore conclude that the applicant has
locus
standi
to
bring these proceedings and that this Court is the right forum to
deal with this matter.
[10]
Section 23 of the Constitution of the Republic of South Africa
6
provides
as follows:
"(1)
everyone has the right to fair labour practice. (2) Every worker
has the right
(a)
to form and join a trade union,
(b)
to participate in the activities and programs of the trade union;
and
(c)
to strike.
(3)
Every employer has the right:
(a)
To form and join an employers' organisation; and
(b)
To participate in the activities and programs of an employers'
Organisation.
(4)
Every trade union and every employers' organisation has the right-
(a)
to determine its own administration programs and activities;
(b)
to organize;
(c)
to form and join a federation.
(5)
Every trade union, employers' organisation and employer has the right
to engage in collective bargaining. National legislation
may be
enacted to regulate collective bargaining. To the extent that the
legislation may limit a right in this chapter, the limitation
must
comply with Section 36(1).
(6)
National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the
legislation
may limit the right in this chapter, the limitation must
comply with Section 36(1)."
[11]
The reason why the second respondent does not permit student
constables to join unions is because it does not regard them as
workers. A constitutionally enshrined right can only be limited in
accordance with s36
7
of the Constitution.
8
There is no legislation that limits the student constables to join
unions. Therefore, the answer to the question lies in determining
whether student constables are workers.
[12]
In the matter of
NUMSA
and Others vs
BADER
BOP
(PTY) LTD and Another
9
the
Constitutional Court said at para "[13] In Section 23, the
constitution recognises the importance of ensuring fair labour
relations. The entrenchment of the right of workers to form and join
trade unions and to engage in strike actions, as well as the
right of
trade unions, employers and employer organisations to engage in
collective bargaining, illustrates that the constitution
contemplates
that collective bargaining between employers and workers is key to a
fair industrial relations environment. This case
concerns the right
to strike. That right is of both historical and contemporaneous
significance. In the first place it is of importance
for the dignity
of workers who in our constitutional order may not be treated as
coerced employees. Secondly it is through industrial
action that
workers are able to assert bargaining power in industrial relations.
The right to strike is an important component
of a successful
collective bargaining system. In interpreting the rights in s23,
therefore, the impotence of those rights in promoting
a fair work
environment must be understood. It is also important to comprehend
the dynamic nature of the wage-work bargain and
the context within
which it takes place. Care must be taken to avoid setting a
constitutional concrete, principles governing that
bargain which may
become absolute or inappropriate as social and economic conditions
change."
[13]
It brooks no argument that the applicant, as a union, has the right
to recruit employees, vide
SANDU
v Minister of Defence & Others.
10
Equally
so workers do have the right to join and belong to unions, vide
Numsa
and Others v
Bader
Bop
(Pty) Ltd and Another (supra)
is
the right to join a union. Regard must also be had to the fact that
the Labour Act proscribes against an employer demanding from
a person
seeking employment not to be a member of a trade union; vide
s5(2)(a). Regard must also be had to the fact the Constitution
11
proscribes against discrimination.
[14]
In the matter of
Minister
of Defence and Others v SANDU and another,
12
the
Supreme Court of Appeal stated,
inter
alia,
that:
"[5] The Constitution does not distinguish between workers or
trade unions depending upon the nature of their work or
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.
13
In South African National Defence Union v Minister of Defence
14
it was held that members of Permanent Force of SANDF are workers for
purposes of section 23(2) of the Constitution of the Republic
of
South Africa, 1996. 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".
[15]
In
casu,
the
issue is whether the student constables are workers, as contemplated
in the
Labour Relations Act. In
the matter of
Liberty
of Association of Ltd v Niselow
(1996)
17 ILJ (LAC) at p681 I to 682A the SCA in determining whether a
person was a worker, looked at whether the person worked
under a
degree or supervision and control which pointed to a relationship of
employer.
[16]
In the matter of S
v
Dental Laboratory (Pty) Ltd and Another
15
Trolip
J (as he then was) stated that the general meaning of the word "work"
means the product or result of work, it is
some particular task or
piece of work which the principal or contractor gives out to another
for him to perform or execute by his
labour or services. This view,
with respect, seems to be shared by Smallberger JA in the matter of
SA
Breweries Ltd v Food & Allied Workers Union & Others.
16
[17]
S213
of the Labour Relations
17
provides that an "employee" "means
"(a)
any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is
entitled to
receive, any remuneration; and any other person who in any manner
assist in carrying on or conducting the business
of an employer, and
'employed" and "employment" have a meaning
corresponding to that of "employee".
[18]
From these two cited authorities herein above, it is clear that
central to the relationship between the employer and employee,
is
"service" provided by the employee for the employer, vide
also
The
State v A.M.C.A;
18
Nat Automobile & Allied Workers' Union.
19
[19]
The relationship between a student constable and the second
respondent is governed by the contract that the parties have to
enter
into.
20
The contract provides,
inter
alia,
progressive
phases of training of the student constable. It is only after
completion of all three phases that a student constable
qualifies to
be taken as a permanent police officer.
21
[20]
In my view, the dominant feature in the contract between the student
constable and the second respondent is the training of
the former.
The answer to the question whether a student constable is an
employee, must therefore be answered in the context of
whether such a
student provides any "services" to the second respondent.
In my view, the answer is no. The service will
be provided after
successful completion of training.
[21]
The fact that during the training, the student constable may be
trained on the job, is of no great moment, such student constable
remains a trainee. Besides, in my view, it is ill conceived to
unionise student constables who are supposed to be empowered with
policing skills.
[22]
I am of the view that the application should be dismissed with costs.
With regard to the costs, the general principle is that
a successful
party is entitled to its costs. Both parties made use of the services
of senior counsel. Only in the case of the respondent,
the senior
counsel was assisted by a junior counsel.
[23]
The respondents are successful in the main application and are
therefore entitled to their costs which should include the costs
of
engaging two counsel.
[24]
The applicant was the successful party in the interlocutory matter,
equally so, is entitled to its costs including of senior
counsel.
[25]
In the result I make the following orders:
AD
POINT IN LIMINE:
1.
The point
in
limine
is
dismissed with costs, inclusive costs of engaging senior counsel.
AD
MAIN APPLICATION:
1.
The
main application is dismissed with costs, inclusive of costs of
engaging two counsel.
NM
MAVUNDLA
Judge
of the High Court
Delivered:
29 September
2009
Applicants
Att : Allardyce and Partners,
Applicants
Adv : Mr. C.E
W
att-Pringle
SC
;
Respondants'
Att : Molefu Dlepu Attorneys,
Respondants'
Adv : Mr. Paul Kennedy SC,
With
MS
MICHELLE AUGUSTINE
1
Reportable Police and Prisons Civil Rights Union v Minister of
Safety and Security.
2
Vide
Ngxuza
matter
(supra)
at
page 1192 where the Supreme Court of Appeal stated that: "[4]
In the type of class action at issue in this case, one
or more
claimants litigate against a defendant not only on their own behalf
but on behalf of all other similar claimants. The
most important
feature of the class action is that other members of the class,
although not formally and individually joined,
benefit from, and
are bound by. the outcome of the litigation unless they invoke
prescribed procedures to opt out of it. The
class action was until
1994 unknown to our law, where individual litigant's personal and
direct interest in the litigation
defined the boundaries of the
court's powers in it. If a claimant wished to participate in
existing court proceedings, he or
she had to become formally
associated with them by compliance with the formalities of joinder.
The
difficulties the traditional approach to participation in legal
process creates are well described in an analysis that appeared
after the class action was nationally regulated in the United
States through a Federal Rule of Court more than 60 years ago:..."
Vide also page 1193 B-C of the same case.
3
The respondent has already indicated to some of the student
constables that it will not effect deductions from their salaries
towards their membership subscriptions.
4
The Constitution provides,
inter alia,
that: "38.
Anyone listed in this section has a right to approach a competent
court, alleging that a right in the Bill
of Rights has been
infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.
The persons who may
approach a court are-
(a) anyone acting
in their own interest;
(b) anyone acting
on behalf of another person who cannot act in their own name;
(c) anyone acting
as a member of, or in the interest of, a group or class of persons;
(d) anyone acting
in the public interest; and
(e) An
association acting in the interest of its members."
5
Vide
Ngxuza (supra)
at 1193 D-1194A.
6
Act 108 of 1996.
7
" S 36. Limitation of rights: (1) The rights in the Bill of
Rights may be limited only in terms of law of general application
to the extent that limitation is reasonable and justifiable in an
open democratic society based on the human dignity, equality
and
freedom, taking into account all relevant factors, including
(a) the
nature of the right:
(b) the
importance of the purpose of the limitation;
(c) the
nature and extent of the limitation;
(d) the
relation between the limitation and ; and its purpose; and
(e) less
restrictive means to achieve the purpose.
(2) Except
as provided in subsection (1) or any other provision of the
Constitution, no law
may limit
any right entrenched in the Bill."
8
Vide SANDU
v
Minister of Defence & others,
2007
(1) SA 402
(SCA) at 413 A-E.
9
[2002] ZACC 30
;
2003 (3) SA 513
(CC) at 526I-527C.
10
2007 (1) SA 402
(SCA) at pages 412F-13E, et
SANDU V Minister of
Defence & Others
2007 (1) SA 422
(SCA) at 426.
11
Section
9 Act 108
of 1996
12
2007 (1) SA 422
(SCA) at 426.
13
Ft note 3 Ss 23(2) (c) and 23(5) respectively.
14
Ft note 4
1999 (4) SA 368
(CC) [Also reported at (6) BCLRS 615
(CC)-Ed.]
15
1965 (3) SA 192
(TPD) at 195A.
16
1990 (1) SA 92
(AD) at 100A-B
17
Act 66 of 1995.
18
1962 (4) SA 537
(AD);
19
1994 (3) SA 15
(AD) at 23 C-E.
20
Annexure AW4 at paginated pages 34-37 is the copy of the "MEMORANDUM
OF AGREEMENT".
21
Clause 2.2.4 of the contract provides: "Upon successful
completion of the training, the Trainee is obliged to render
services
to the Service for a minimum period of 4 (four) year years
at a place determined by the National Commissioner unless the
National
Commissioner decides otherwise."