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[2000] ZAWCHC 9
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NAPTOSA and Others v Minister of Education, Western Government and Others (4842/99) [2000] ZAWCHC 9; 2001 (4) BCLR 388 (C); 2001 (2) SA 112 (C); (2001) 22 ILJ 889 (C) (20 October 2000)
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE
NO: 4842/99
REPORTABLE
In the matter between:
NAPTOSA
First
Applicant
B.M.
CARROLL
Second
Applicant
R.G.
HORN-BOTHA
Third
Applicant
D.N.
YEO
Fourth
Applicant
E.
RYNHOUD
Fifth
Applicant
S.W.
ALEXANDER
Sixth
Applicant
C.E.
WILLIAMS
Seventh
Applicant
And
THE
MINISTER OF EDUCATION, WESTERN
GOVERNMENT
First
Respondent
THE
MINISTER OF EDUCATION, NATIONAL
GOVERNMENT
Second
Respondent
THE
MINISTER OF TRADE AND FINANCE,
NATIONAL
GOVERNMENT
Third
Respondent
GOVERNMENT
EMPLOYEES PENSION FUND
Fourth
Respondent
JUDGMENT
DELIVERED ON FRIDAY 20
TH
OCTOBER 2000
CONRADIE, J:
The first applicant is a
federation of trade unions representing the interests of educators
employed by the first respondent. The
other applicants, whom I shall
call 'the Teachers', are educators who were at all relevant times
employed by the first respondent.
I shall refer to the latter as ‘the
Department’.
The applicants in their
notice of motion seek orders which, in their amended form, read as
follows:
“
1.
A declaratory order that Clause 3 of Annexure “E” is
void, in respect of
fixed term contracts for temporary educators for
1998 and 1999.
2.
A declaratory order that second to seventh applicants are entitled
for 1998 and
1999 to all benefits afforded to educators in terms of
the Regulations promulgated in Government Gazette, no. 1684 dated 13
November
1995, Notice no. 1743 and in terms of PAM promulgated in the
Government Gazette, no. 16814 dated 11 November 1997 Gazette, no.
19767 dated 18 February 1999 including but not limited to pension
benefits of the Government Employees Pension Fund constituted
in
terms of the Government Service Pension Law of 1973.
3.
A declaratory order that the unilateral change of service benefits of
temporary
educators in 1998 and 1999 constitutes an unfair labour
practice in terms of section 23(1) of the Constitution of the
Republic
of South Africa, Act no. 186 of 1996.
4.
The costs of this application.”
Impelled by serious
budgetary shortfalls, the Department at the end of 1997 embarked upon
a rationalization scheme in terms of which
it proposed dismissing all
temporary educators who had entered its employ after 30 June 1996.
The reason for choosing this group,
numbering some 3 500, is that
temporary educators employed before that date were protected from
dismissal by a collective agreement
between the Department and
educational sector trade unions. The Department entered into
consultations in terms of
section 189
of the
Labour Relations Act 66
of 1995
. All temporary educators in the affected group were
dismissed. One of the matters which had to be discussed was, of
course, ways
in which the impact of the retrenchments could be
reduced. It was decided by the Department that this could best be
done by offering
dismissed temporary educators employment under fixed
term contracts on the basis of a salary without any accompanying
benefits.
Clause three of the
standard re-employment contract is in issue. It reads as follows –
“
You
will not be entitled to receive any other benefits or payments of any
kind from the WCED (the Department) and no payment other
than the
salary referred to in this preceding paragraph will be payable to you
by the WCED”
The ‘other
benefits’ were membership of the government employees’
pension fund, home owners’ allowances,
medical aid premium
subsidization, service bonuses and paid sick leave.
What the Teachers call
their ‘statutory rights’ to these benefits are found in
the regulations under notice 1743 in
Government Gazette 11684 dated
13 November 1995 (‘the Regulations’). Chapter 4 sets out
the entitlement of educators
to medical assistance, state housing,
the house owner allowance, a service bonus, long service recognition
and so forth.
The Regulations were
promulgated pursuant to powers given to the second respondent in
terms of the Educators’ Employment Act
(Proclamation 138 of
1944). That Act (‘the 1994 Act’) which has now been
repealed by the Employment of Educators Act
76 of 1998 (‘the
1998 Act’), broadly speaking, provided in section 5(1), that
salaries and allowances of educators
were to be determined by the
Minister subject to the provisions of sub-section (2). Section
5(2)(h) provided that ‘where
a power or function of the
Minister relates to a matter of mutual interest as defined in section
1 of the Education
Labour Relations Act, he
shall in respect of such
a matter exercise such power or perform such function only in terms
of an agreement negotiated on such
a matter by the Education Labour
Relations Council or the relevant provincial chamber thereof’.
Since terms and
conditions of employment (defined to include remuneration,
compensation and service benefits) were matters of mutual
interest as
described in section 1 of the Education Labour Relations Act no. 146
of 1993 (‘the ELRA’) it meant that
the minister was not
empowered to make a determination except in terms of an agreement
reached in the Education Labour Relations
Council by virtue of
section 12 of the ELRA.
This labour relations
scheme was continued by the 1998 Act which came into operation on 2
October 1998. Section 4(1) provides that
‘notwithstanding
anything to the contrary contained in any law but subject to the
provisions of this section, the Labour
Relations Act or any
collective agreement concluded by the Education Labour Relations
Council, the Minister shall determine the
salaries and other
conditions of service of educators’.
Mr.
Arendse
for the first respondent argued
that the high court had no jurisdiction to grant the relief sought in
the notice of motion; the
application should have been brought in the
labour court.
In this context there was
a debate about whether or not the Regulations could be regarded as a
collective agreement. By virtue of
their paid employment in the
Department, the Teachers were employees in terms of the Labour
Relations Act no. 66 of 1995 (‘the
LRA’). A
‘collective agreement’ is defined in section 213 of the
LRA as ‘a written agreement concerning
terms and conditions of
employment or any other matters of mutual interest’ concluded
between, inter alios, an employer and
one or more trade unions.
Although the minister was given power to ‘determine’
salaries, salary scales and allowances,
in reality he did not
determine any aspect of the agreement. He had no discretion. He was
empowered to incorporate the agreement
in regulations, but not to add
to or subtract anything from it.
I was persuaded by Mr du
Plessis for the applicants that the definition of ‘collective
agreement’ in the LRA is not
wide enough to encompass
regulations promulgated under section 28 of the 1994 Act, even though
such regulations might have been
entirely the product of negotiations
between the educators and their employer. If I should be wrong on
this, it must be noted that
the Regulations were supplemented by what
are called Personnel Administration Measures. These were promulgated
by the minister
as notice 1531 on 11 November 1997 in Government
Gazette no. 16814. The Personnel Administration Measures are not
expressed to
incorporate the product of negotiations and Mr Arendse
did not argue that they were to be so understood. Salary scales and
post
levels are determined by the minister. They profoundly
impact upon the earlier, more general, Regulations with which they
are inseparably linked. The regulatory framework - the Regulations
and the Personnel Administration Measures read together - can
thus
not be regarded as a collective agreement.
Mr
du Plessis’s argument was that the Teachers - and, of course,
other educators in the same position - could not, by subscribing
to
their contracts of temporary employment, have lawfully relinquished
the rights given to them by the Regulations read with the
Personnel
Administration Measures. The latter document states in its opening
paragraph that ‘as regards matters that are
regulated in this
PAM only those measures contained therein shall apply, and there may,
in respect of the matters regulated herein,
be no deviation from the
prescribed measures ...’ There then follows a proviso which has
no importance here. This provision
clearly prohibits the Department
from contracting out of obligations imposed by the Personnel
Administration Measures which make
no distinction between permanent
and temporary educators. Whether or not the Teachers could be said to
have lawfully renounced
their rights was, Mr du Plessis suggested, a
matter which could be decided by this court.
The labour court is not
in the LRA given jurisdiction in labour matters generally, except
where under section 157(2) it exercises
a concurrent jurisdiction
with the high court in respect of any alleged or threatened violation
of any fundamental right entrenched
in chapter 2 of the Constitution
and arising from –
“
(a)
employment and from labour relations;
(b)
any dispute over the constitutionality of any executive or
administrative act or conduct, or any
threatened executive or
administrative act or conduct, by the State in its capacity as an
employer;
(c)
the application of any law for the administration of which the
Minister is responsible.”
Save for this, the labour
court’s jurisdiction is specific. Unless, in terms of section
157(1), it has been given jurisdiction
by the LRA or any other law,
it has none. As far as the subject matter of a dispute is concerned,
the labour court, broadly speaking,
in the field of individual labour
relations, has jurisdiction over the areas of security of employment
(unfair dismissal, unfair
suspension and the failure to re-employ or
re-instate) and unfair treatment in relation to work opportunities
(promotion, demotion,
training and benefits). The present dispute
does not fall within any of these categories. It involves the
validity of a clause
in the Teachers’ re-employment contracts.
And although the parties to the dispute are persons over whom the
labour court
would have jurisdiction (see sub-section 209 and 213 of
the LRA), I must conclude that this court has jurisdiction to deal
with
the subject matter of the dispute. Before doing so, however, I
shall discuss the objection to the court’s jurisdiction to
grant the relief requested in the third claim.
In regard to prayer three
Mr du Plessis argued that the Constitution of the Republic of South
Africa 108 of 1996 (‘the Constitution’)
in section 23(1)
elevates the entitlement to fair labour practices to a fundamental
right. The Constitution of the Republic of
South Africa Act 200 of
1993 (‘the Interim Constitution’) in section 27(1) did
the same. In reliance on this constitutionalization
of labour rights,
Mr du Plessis contended that an employee whose fundamental right to
fair labour practices had been violated might,
instead of relying on
the provisions of the LRA, rely directly on the Constitution. If the
employee chose to do this, he or she
would be entitled to approach
the high court instead of the labour court to resolve a dispute
which, by the formulation of the
claim, would have been turned into a
fundamental rights dispute.
S 23 (1) of the
Constitution provides that ‘everyone has the right to fair
labour practices.’ For the purpose of deciding
the
jurisdictional issue I shall, in favour of the applicants, assume
that, by concluding a contract with the Teachers in terms
which
financially discriminated against them, the Department committed an
unfair labour practice. If this is so, and since the
Bill of Rights
binds the legislature, the executive, the judiciary and all organs of
state. (Sections 8 (1) and (2).) the Department
as part of the
provincial administration (which is an organ of state (see: s 239 of
the Constitution)) violated the Teachers’
constitutional right
to fair labour practices.
S 157(2) of the LRA gives
the labour court concurrent jurisdiction with the high court in
respect of any alleged or threatened violation
of a fundamental right
in the employment sphere. The high court has the primary
responsibility for the enforcement of fundamental
rights. It has
jurisdiction to pronounce upon all violations of fundamental rights.
This is plain from section 169 of the Constitution.
The qualification
in section 157 (2) of the LRA is intended to restrict the competence
of the labour court to fundamental rights
issues in the employment
sphere. The applicants have ‘alleged’ a violation of
their fundamental right to fair labour
practices. It does not matter
whether the claim is good or bad. That goes to the merits. If it
appears from supporting information
that the allegation is without
substance a court may already at the stage of the jurisdictional
enquiry decide that the case cannot
concern a violation of a
fundamental right and decline to exercise jurisdiction. This is not
such a case. In this case and, I would
think generally, once the
allegation has been made, the high court would have jurisdiction. In
my opinion, therefore, we are obliged
to pronounce upon the third
claim as well. I deal with it immediately.
One of the provisions
dealing with a remedy for a breach of the rights in chapter 3 of the
Constitution is found in section 36 which
reads:
“
Anyone
listed in this section has the 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 complexities of
remedies for a violation of a fundamental right were, in the context
of a claim for 'constitutional damages',
discussed in Fose v Minister
of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC).
It is clear from this
decision of the constitutional court that there may be circumstances
where a litigant against the State would
be entitled to rely directly
on a breach of a fundamental right. Whether this would be
permissible would depend, however,
on the availability of
‘appropriate relief’. The majority judgment written by
Ackermann J explains that ‘appropriate
relief’ will in
essence be relief that is required to protect and enforce the
Constitution. In deciding what is appropriate
relief, the interests
not only of the complainant but of society as a whole, he holds,
ought to be served.
In Fose’s case the
plaintiff claimed, in addition to common law damages for having been
assaulted by the police, damages of
a punitive kind for the invasion
of his fundamental right not to be subjected to torture. At para [67]
Ackermann J says this:
“
In
the present case there can, in my view, be no place for further
constitutional damages in order to vindicate the rights in question.
Should the plaintiff succeed in proving the allegations pleaded he
will no doubt, in addition to a judgment finding that he was
indeed
assaulted by members of the police force in the manner alleged, be
awarded substantial damages. This, in itself, will be
a powerful
vindication of the constitutional rights in question, requiring no
further vindication by way of an additional award
of constitutional
damages.”
Kriegler J gives what he
characterises as ‘my narrow reasons’ for concurring with
the order proposed by Ackermann J.
He agrees that constitutional
rights have complementary remedies and that they should be of a kind
which vindicate the Constitution.
He also agrees that statutory and
common law remedies may be sufficient for this purpose.
At paragraphs [99] and
[100] he writes –
“
[99]
There are powerful reasons for not excluding common-law and statutory
relief from the ambit of s 7(4)(a).
Many recent statutes such as the
Labour Relations Act seek
to codify constitutional rights, and are
expressly designed to provide suitable relief for the infringement of
constitutional rights.
It would undermine the best efforts of the
Legislature to exclude these remedies from a court’s arsenal of
remedial options.
In the case of the final Constitution, the
indications are more compelling, and I would have thought conclusive,
that the drafters
had no intention of excluding common law and
statutory remedies from the remedial scheme.
[100] A court
has a wide range of remedies in exercising its s 7(4)(a) powers.
These remedies include common-law relief
(developed if necessary by s
35(3)), statutory relief, declaratory relief (expressly mentioned in
s 7(4)(a) and a number of potential
remedies under ss 98 and 101(4).
There is no reason, at the outset, to imagine that any remedy is
excluded. Provided the remedy
serves to vindicate the Constitution
and deter its further infringement, it may be ‘appropriate
relief’ under s 7(4)(a)’.
It is now time to examine
the policy considerations underlying the LRA to determine whether the
relief claimed by the applicants
under s 23 of the Constitution would
be appropriate.
Section 1 of the LRA
declares that one of the primary objects of the Act is ‘to give
effect to and regulate the fundamental
rights conferred by section 27
of the Constitution.’ Section 27(1) of the interim
constitution was almost identical
to the present section 23(1).
Another primary object of the LRA is ‘the effective resolution
of labour disputes’ (section1(d)).
One would expect
the LRA, if it were true to its stated objectives, to marry the
enforcement of fundamental rights with the effective
resolution of
labour disputes. This is exactly what it seeks to do. It provides
mechanisms for the enforcement of such labour practices
as the
legislature considers to be fair and the suppression of any labour
practice considered to be unfair. If an employer adopts
a labour
practice which is thought to be unfair, an aggrieved employee would
in the first instance be obliged to seek a remedy
under the LRA. If
he or she finds no remedy under that Act, the LRA might come under
constitutional scrutiny for not giving adequate
protection to a
constitutional right. If a labour practice permitted by the LRA is
not fair, a court might be persuaded to strike
down the impugned
provision. But it would, I think, need a good deal of persuasion. The
reason for this is articulated by Martin
Brassey in an article in the
S A Journal of Human Rights (1994 SAJHR at 179) entitled 'Labour
Relations under the New Constitution'.
He writes about the Interim
Constitution, but the position is no different under the
Constitution. At page 206 he states:
"For seventy years
our legislature has been modernizing our system of labour law, and
for the last twenty years the labour
courts have been doing the same
under the aegis of the unfair labour practice. As a result, labour
law already has a kind of charter
of fundamental rights of its own. I
accept that much still has to be done, but I am not sure that the
Constitutional Court is the
best place to do it in. I tend to share
the view that was expressed by McIntyre J in Re Public Service
Employee Relations Act,
the leading case on whether the (Canadian)
Charter gives workers a right to strike:
'Labour law...is a
fundamentally important as well as extremely sensitive subject. It is
based upon a political and economic compromise
between organised
labour - a very powerful socio-economic force - on the one hand, and
the employers of labour - an equally powerful
socio-economic force -
on the other. The balance between the two forces is delicate... Our
experience with labour relations has
shown that the courts, as a
general rule, are not the best arbiters of disputes which arise from
time to time...Judges do not have
the expert knowledge always helpful
and sometimes necessary in the resolution of labour problems.'
The words of Mc Intyre J
(reported at (1987) 38 DLR (4
th
) 161 at 232) are
peculiarly apt in the case of judicial interference with matters
which in labour law are regarded as matters of
mutual interest; but
they are also true, I think, where a court is, in a highly regulated
environment, asked to fashion a remedy
which the legislature has not
seen fit to provide.
Mr du Plessis candidly
admitted that the unfair labour practice regime which the courts
would, on his argument, have to apply under
section 23 of the
Constitution would resemble that developed by the industrial court.
To grant relief which would encourage the
development of two parallel
systems would in my view be singularly inappropriate.
Taking into account the right
to fair labour practices and the duties
imposed thereby on employers and employees alike, it is not a right
which can, without
an intervening regulatory framework, be applied
directly in the workplace. The social and policy issues are too
complex for that.
The consequences of adopting Mr du Plessis’s
argument would be dramatic. For example, an unfair dismissal, which
is undoubtedly
an unfair labour practice, would become justiciable in
the high court without having been aired before the CCMA.
Mcosini
v Mancotywa and another
1998 (2) Volume 19
ILJ 1413, a case in the high court of Transkei, points out at 1417
B-E that, although the suspension of an employee
might violate
various fundamental rights of the employee, the latter’s cause
of action, his suspension, remains a labour
matter. The jurisdiction
of the labour court, it was held, could not be evaded by alleging the
breach of some other fundamental
right.
In Imatu v Northern
Pretoria Metropolitan Substructure
1999 (2) SA 234
(T) at 239 E-F van
Dijkhorst J held that the LRA creates a two stream labour dispute
resolution system which leaves no room for
intervention by another
court. At 242 F-G he commented that the whole, or virtually the
whole, spectrum of labour relations disputes
is covered by the two
procedures set out in the LRA – that of concilliation and
arbitration, and that which leads to the
labour court.
Martin Brassey and Carole
Cooper writing in Constitutional Law of South Africa, Chaskalson et
al state at p 30-13 –
“
Yet,
in the labour field, the issue of the horizontal application of the
labour relations rights to private citizens will be mainly
academic.
This is because existing labour legislation already regulates, to a
large degree, private conduct between employers and
employees. The
horizontal reach of the labour rights will therefore extend to those
matters falling within the scope of the rights
but not covered by
existing legislation. The exact extent of this reach is particularly
unclear with regard to the right to fair
labour practices because of
its open-textured nature. Depending on the scope given to this right,
potential areas for its application
to private conduct relate to the
duty to bargain (which has been deliberately excluded from labour
legislation), employment issues
beyond the confines of the
employer-employee relationship, and employer-employee issues which
may be regarded as fair labour practices
but are not covered by
legislation”
We are not, of course,
here concerned with a case of horizontal application of the
Constitution. Yet I cannot conceive that it is
permissible for an
applicant, save by attacking the constitutionality of the LRA, to go
beyond the regulatory framework which it
establishes.
Mr
du Plessis, appreciating the difficulties thrown up by the notion of
parallel dispute resolution systems, then sought to rely
on the
residual unfair labour practice in item 2 of part B of schedule 7 to
the LRA. This deals with the unfair conduct of an employer
relating
to the provision of benefits to an employee. I would have thought
that the rights in part B of schedule 7 were, in terms
of section
157(1) of the LRA, matters to be exclusively determined by the labour
court. Mr du Plessis, however, contended that
since the exclusive
jurisdiction conferred on the labour court was in section 157(1) made
‘subject to the Constitution’,
the enactment of part B of
schedule 7 could not have been intended to limit the concurrent
jurisdiction of the high court provided
for in section 157(2). I do
not agree with this submission. The expression ‘subject to the
Constitution’ does no more
than ensure that it cannot be
thought that the constitutional court has no jurisdiction in labour
matters involving fundamental
rights issues. Moreover, the argument
takes no account of the provisions of item 3 of part B which direct
parties to take their
disuptes in the first place to a bargaining
council or to the Commission for Conciliation, Mediation and
Arbitration, and if they
remain unresolved, depending on the nature
of the dispute, to either the labour court or arbitration.
Prayers 1 and 2, as we
have seen, seek relief on the footing of the illegality of clause 3
of the Teachers’ temporary employment
contracts. In my
discussion of the jurisdictional issue, I expressed the view that the
clause (which excludes temporary educators
from the benefits enjoyed
by permanent educators) was contrary to the Regulations and the
Personnel Administration Measures. The
Teachers should have been
employed on the terms prescribed by law and on no others.
One must suppose that
those representing the educators at the retrenchment negotiations
would have known that the offer of temporary
employment made to their
members did not comply with the Regulations and the Personnel
Administration Measures. It was not a difficult
thing to discover.
Yet, apart from the applicants, no one has sought to challenge the
fixed term contracts. It seems overwhelmingly
probable that it was
decided not to challenge them because the compromise was thought to
be the best solution to a very difficult
problem.
The relief sought in
paragraphs 1 and 2 of the notice of motion is a declaratory order
that -
(a) clause 3 of the fixed
term of employment contract is void; and
(b) the Teachers are
entitled to all benefits afforded to educators.
Section 19(1)(a)(iii) of
the Supreme Court Act 59 of 1959 gives the high court jurisdiction
‘in its discretion, and at the
instance of any interested
person, to enquire into, and determine any existing, future or
contingent right, notwithstanding that
such person cannot claim any
relief consequential upon the determination’. (See J T
Publishing (Pty) Ltd v Minister of Safety
and Security
[1996] ZACC 23
;
1997 (3) SA
514
(CC) at 525 para 15.)
A court, having at the
first stage of the enquiry decided that the claimant is a person
interested in an existing, future or contingent
right or obligation,
would at the second stage enquire whether or not the dispute is a
proper one for the exercise of its discretionary
power. As to this
‘…it must be borne in mind that, though it may be
competent for a court to make a declaratory order
in any particular
case, the grant thereof is dependent on the judicial exercise by that
Court of its discretion with due regard
to the circumstances of the
matter before it.’ (per Wessels JA in Reinecke v Incorporated
General Insurances Limited 1974
(2) 84 (AD) at 95C.) What the
discretion entails is explained by Williamson J (as he then was) in
Adbro Investment Company Limited
v Minister of the Interior 1961 (3)
283 (T) at 285B-D :
‘…
the
Court in each case must … carefully determine whether or not
the particular case in question is a proper case for the
exercise of
its discretion. For a case to be a proper case, in my view, generally
speaking it should require to be shown that despite
the fact that no
consequential relief is being claimed or perhaps could be claimed in
the proceedings, yet justice or convenience
demands that a
declaration be made…’
A declaratory order is an
order by which a dispute over the existence of some legal right or
entitlement is resolved. The right
can be existing, prospective or
contingent (SA Onderlinge Brand en Algemene Versekeringsmaatskappy
Beperk v Van den Berg en 'n
Ander, 1976 (1) 602 (AD).) A declaratory
order need have no claim for specific relief attached to it, but it
would not ordinarily
be appropriate where one is dealing with events
which occurred in the past. Such events, if they gave rise to a cause
of action,
would entitle the litigant to an appropriate remedy.
The second applicant is
no longer employed by the Department. The other Teachers have been
appointed to permanent positions. Their
claims for benefits lie in
the past. Instead of bringing claims sounding in money for benefits
which they should have received,
but did not receive, the applicants
claim a declaratory order that they are for 1998 and 1999 entitled to
all benefits afforded
to educators. This is not, in the
circumstances, an appropriate remedy. The claim need not have been
brought by way of action.
It could, like the claim for the
declaratory order, have been brought on motion. It would have been
the better course to take.
It is artificial to declare that a
litigant has certain rights when what he really wants is a judgment
sounding in money. The availability
of an alternative remedy is an
element to be considered in deciding whether or not to grant a
declaratory order. (Baxter, Administrative
Law p 710.)
The applicants have shown
that clause 3 of the fixed term employment contract conflicts with
the Regulations and the Personnel Administration
Measures. I shall
therefore assume that it is void. If clause 3 is void, the Teachers
would in principle, and depending on their
individual circumstances,
have become entitled to certain benefits. The applicants claim, in
effect, a declaratory order that each
of the Teachers qualifies for
such benefits as he or she might prove to be entitled to. An order in
these terms is one of the kind
deprecated as being abstract,
hypothetical or of academic interest only. It does not settle the
rights of anyone in a fashion which
is sufficiently precise. The
Teachers cannot in a legal sense be said to be ‘interested’
in an outcome which leaves
their rights so vague and undetermined.
Moreover, an order in the terms sought would, in the circumstances of
this case, offend
against the rule that a litigant is obliged to
claim all available relief in the same action. (Custom Credit
Corporation (Pty)
Ltd v Shembe 1972 (3) 462 (AD) at 472A.)
The Teachers content
themselves with alleging what benefits they received prior to their
dismissal. The second applicant appears
to have received the most
extensive benefits. He says that before his dismissal he was entitled
to a service bonus, a home owner
allowance as well as pension fund
and medical fund benefits. There is no indication on the papers that
the second applicant, even
if he had received a service bonus in
1997, would have been entitled to one in 1998. The Regulations
dealing with home ownership
provide that in order to participate in
the scheme an educator should comply with all the provisions of the
regulations dealing
with the scheme. So, for one thing, an educator
who wishes to participate in the scheme must be a contributing member
of a statutorily
instituted pension or provident fund. But section 5
of the Government Employees’ Pension Law (Proclamation 21 of
1996) denies
membership of the pension fund to any person who is
employed under a contract of service which excludes him or her from
membership
of the fund. That is what the Teachers’ employment
contract does. In order to qualify for a medical aid contribution,
the
second applicant had to provide the first respondent with written
proof of membership of the medical scheme of which he was a member.
He does not testify that he did this. The same difficulties
arise in the case of the other Teachers. None of them establishes
his
or her entitlement to a particular benefit.
I consider that the
substantial delay in bringing these proceedings is another reason for
exercising our discretion against the
grant of a declaratory order.
It is well established law that undue delay may be taken into account
in exercising a discretion
as to whether to grant an interdict or a
mandamus, or to grant relief in review proceedings. The declaratory
order, being as flexible
as it is, can be used to obtain much the
same relief as would be vouchsafed by an interdict or a mandamus.
Where it is not necessary
that a record of proceedings be put before
the court, a declaratory order could serve as a review. A court, in
exercising its discretion
whether to grant a declaratory order
should, accordingly, in an appropriate case, weigh the same
considerations of ‘justice
or convenience’ as it might do
in the case of an interdict or a review.
Prejudice features large
in deciding what is just or convenient. In the present case
there is to my mind considerable prejudice
to the Department. Most of
the educators in the Department, through their representative unions,
accepted at the retrenchment discussions
albeit reluctantly, the way
out of what was, for the Department and for them, an enormous
dilemma. The fixed term contracts of
the educators were for three
months. If an application for the relief now sought had been brought
within a matter of weeks, the
Department would have realised that the
settlement was being challenged and might have declined to renew the
contracts of those
who were dissatisfied with the absence of
benefits. It might have terminated the contracts of all fixed term
educators. Having
regard to the gravity of the situation, it might
even have requested and obtained an amendment of the subordinate
legislation promulgated
by the minister. Fifteen months later, when
the applicants launched their application, the time for remedial
steps had passed.
The Department found itself exposed to an
expenditure for which it had not budgeted and which it could not
afford without seriously
compromising educational funding for the
years 1999 and 2000. I do not say that any one of the above
considerations by itself would
have been decisive. Taken together,
they constitute in my opinion a formidable hurdle in the way of the
exercise of a discretion
favourable to the applicants.
The application is
dismissed with costs which are to include the costs occasioned by the
employment of two counsel.
J.H.
CONRADIE
I agree:
T.S.B.
JALI