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[2020] ZALAC 41
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Minister of Justice and Correctional Services and Others v Ramaila and Others (CA 5/2019) [2020] ZALAC 41; (2021) 42 ILJ 339 (LAC) (9 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN.
Reportable
Case
No: CA 5/2019
In
the matter between:
Minister
of justice and
correctional
services
First Appellant
MINISTER
OF PUBLIC SERVICE
AND
ADMINISTRATION Second
Appellant
DIRECTOR
– GENERAL: JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT Third
Appellant
and
SEKHOSHE
DAYS RAMAILA
First Respondent
DEMOCRATIC
NURSING ORGANISATION
OF
SOUTH AFRICA
Second
Respondent
HEALTH
AND OTHER SERVICE PERSONNEL
TRADE
UNION OF SOUTH AFRICA Third
Respondent
NATIONAL
PROFESSIONAL TEACHERS’
ASSOCIATION
OF SOUTH AFRICA Fourth
Respondent
NATIONAL
EDUCATION, HEALTH AND
ALLIED
WORKERS
UNION Fifth
Respondent
POLICE
AND PRISONS CIVIL RIGHTS UNION
Sixth Respondent
PUBLIC
SERVANTS ASSOCIATION
Seventh Respondent
SOUTH
AFRICAN DEMOCRATIC TEACHERS UNION
Eighth Respondent
SOUTH
AFRICAN POLICE UNION Ninth
Respondent
Heard:
05 May 2020
Delivered:
09 November 2020
Coram:
Phatshoane ADJP, Davis JA and Murphy AJA
Judgment
PHATSHOANE
ADJP
Introduction
[1]
This appeal, which is with leave of the Labour Court,
draws
its origin from three instruments: A Collective Agreement titled the
Public Service Coordinating Bargaining Council (PSCBC)
Resolution 1
of 2012; the Incentive Policy Framework issued by the Minister of
Public Service and Administration, the second appellant;
and the
Performance Management Policy issued by the Department of Justice and
Constitutional Development (“the department”).
The
instruments in
contention
provide,
inter
alia
, that first-time appointees in
the public service qualify for pay progression upon completion of 24
months’ period of service.
The differentiation between
first-time entrants in the public service and the other employees, in
respect of their periods of eligibility
to receive the pay
progression, has set the scene for dissonance central to this appeal.
[2]
Following the LAC Practice Directive of 21 April 2020, in respect of
Access to the
Court in light of Extended COVID-19 National Lockdown,
parties agreed to have the appeal disposed of on paper without oral
argument.
Mr Sekhoshe Days Ramaila (“Mr Ramaila”), the
first respondent, has conducted his own litigation from inception to
date.
[3]
The appeal is against the whole of the Judgment and order of
the
Labour Court (
per
Steenkamp J), handed down on 28 February 2019, substantially in the
following terms:
3.1
the differentiation as contained in
Clause 6 of the Incentive Policy Framework for employees on salary
Levels 1 to 12 and those
covered by the Occupation Specific
Dispensation (OSD), which extended the qualifying period for pay
progression for first-time
participants from 12 months to 24 months,
is irrational, arbitrary and unfairly discriminatory against the
first respondent, Mr
Ramaila
,
and other
first time participants;
3.2
the differentiation in the provisions of
Clause 6 of the Performance Management Policy of the department,
which provides that a
newly appointed employee in the public service
is eligible for pay progression only after serving a continuous
period of 24 months,
is irrational, arbitrary, and unfairly
discriminatory against Mr Ramaila and other newly appointed
employees;
3.3
Clauses 4.1 to 4.3 of Public Service
Coordinating Bargaining Council (PSCBC) Resolution 1 of 2012,
extending the qualifying period
for pay progression for first time
participant from 12 to 24 months, is reviewed and set aside;
3.4
the decision of the department not to
grant Mr Ramaila pay progression is declared invalid;
3.5
the Minister of Justice and Correctional
Services and the Minister of Public Service and Administration (“the
Minister of
DPSA”), the first and second appellants, are to
direct that the relevant functionary in the department effect the
necessary
adjustments to Mr Ramaila’s salary in order to
reflect the pay progression he is entitled to pursuant to the
performance
assessment for the financial year 01 April 2015 to 31
March 2016 and all consequent pay progression adjustments.
[4]
The appeal has lapsed because the record was served and filed 11 days
out of time.
[1]
The parties
devoted much attention in their written argument for its
reinstatement. It is trite that condonation
cannot
be had for the mere asking
.
A
party seeking the Court’s indulgence must establish good cause.
The appellants’ attorney intimates, in the main, that
her
indisposition had impeded the timeous filing of the record.
The
period of delay is not excessive and the application for condonation
was brought at
the
earliest opportunity. The appeal raises serious issues of public
importance. It is in the interest of justice that the appeal be
reinstated and the
requested
condonation
be granted. There can be no prejudice.
The
factual background
[5]
Mr Ramaila worked at a law firm in Sandton, Johannesburg. On 02 March
2015 he took
up employment in the department, the Office of the Chief
State Law Adviser, Cape Town, as a State Law Adviser (LP7-LP8)
together
with five other State Law Advisers, Mr Kgaogelo Lekoloane
and Ms Lucinda Le Roux, who both previously worked for the National
Prosecuting
Authority (“NPA”), Ms Inge Ontong, who was
engaged in the South African Police Services, Ms Veuonia Grootboom,
who
earlier worked for the Judicial Inspectorate for Correctional
Services, and Ms Refilwe Mhlwatika, who served the Provincial
Treasury,
Northern Cape. Save for Mr Ramaila, Ms Grootboom, and Ms le
Roux, the other State Law Advisers terminated their services with the
Office of the Chief State Law Adviser.
[6]
Mr Ramaila, Ms Ontong and Ms Grootboom signed performance agreements
which were the
same and contained identical Key Results Areas (KRAs).
Their job requirements were also similar. They wrote the same
competency
assessment test and underwent an interview process. They
were appointed on
the
same minimum
salary notch as reflected in the job advertisement.
[7]
Mr Ramaila, Ms Ontong, Ms Grootboom and Ms Mhlwatika were placed on a
12 months probation
period. However, Mr Lekoloane and Ms le Roux were
not subjected to this because they had already completed their
probation when
they rendered their services to the NPA. The contract
of employment that Mr Ramaila signed encapsulates the same terms as
those
applicable to other State Law Advisers. Clause 3.1.11 of
Annexure A to the contract stipulates:
‘
Clause
3.1.11
Public
servants entering the state, regardless of their different
backgrounds, skills and experience need to be orientated around
a
common programme to understand and implement the agenda of the state.
The
Compulsory Induction Programme (the “CIP”) is applicable
with effect from 01 November 2012 to, amongst others, the
following
employees:
(a)
Appointed on salary levels 1 to 14 in a
production or supervisory/managerial, Occupation Specific
Dispensation (OSD) and non-OSD
post in the Public Service with effect
from 1 July 2012 including employees appointed on a fixed-term
contract exceeding 2 years;
or
(b)
Who have resigned and are re-appointed
into the public service with effect from 1 July 2012.
The
CIP is a one-year programme. An employee shall within six (6) months
of his/her date of appointment to the public service enrol
for CIP.
An employee has twenty-four months (24) from her or his date of
appointment to the Public Service to successfully complete
the CIP.
Only upon successful completion of the CIP will an employee qualify
for an annual pay progression commencing with effect
from 1 April of
the new cycle.
The
probation period of an employee shall not be confirmed unless an
employee has successfully completed at least one of the CIP.
If an
employee fails to successfully complete one of the CIP after three
(3) attempts, the Head of the Department shall manage
the employee in
terms of the code and procedure on the management of poor performance
or discipline, whichever is applicable.
To
apply the system effectively, quarterly probation reports, which will
be provided to you for cognisance and signature, will be
completed by
your supervisor/manager and submitted to HR Component. Please note
that your probation period will automatically be
extended by the
number of days, vacation, sick or special leave that you take during
such probation period. As indicated above,
your probation cannot be
confirmed unless one of the CIP has been completed within 12 months.’
[8]
Prior to the trial it
was common cause that Mr Ramaila attended CIP training, as set out in
his contract of employment, which was
required prior to the
confirmation of his probation. As it turned
out
during the trial, the appellants amended their statement of response
to dispute that he attended the CIP. Mr Anthony James Canham,
an
employee of the department, engaged at the Justice College as a
lecturer on management courses which includes CIP, conceded
that the
department bore a duty to enrol Mr Ramaila for the CIP training and
had failed to discharge this.
[9]
Mr Ramaila, Ms Ontong and Ms
Grootboom attended an induction programme from 19 to 20 November
2015. At the end of the 12 months
probation period, the department
forwarded an email to Mr Ramaila confirming the completion of the
probation and his permanent
appointment.
[10]
During the performance assessment for the financial year commencing
01 April 2015 and ending on 31
March 2016 Mr Ramaila achieved an
overall annual performance rating of 100% which the department
confirmed through a letter dated
16 February 2017 which reads:
‘
OUTCOME
OF PERFORMANCE ASSESSMENT FOR FINANCIAL YEAR: 1 APRIL 2015 TO 31
MARCH 2016
During
the moderation process on your performance for the abovementioned
assessment period you achieved an overall annual rating
of 100%.
Please note that the Department could not process any payments in
respect of the Performance Management Policy as a result
of the
following:
24
months on the salary level not completed (new appointee to Public
Service).’
[11]
This gave rise to this dispute. At the heart of Mr Ramaila’s
complaint is that his comparators,
Ms Grootboom and Ms Le Roux,
achieved the same performance assessment outcome which was an overall
annual rating of 100% in respect
of the financial year 2015/2016.
However, they were awarded an annual pay progression for that fiscal
year whereas he was not.
[12]
On 07 and 10 March 2017 Mr Ramaila directed detailed letters to the
department and the Department of
Public Service and Administration
(DPSA) protesting the differentiation brought about
by
the period of eligibility for pay progression as captured in various
impugned instruments. The department responded that the Incentive
Policy Framework was a directive from the Minister of DPSA which had
to be complied with; and that it could not unilaterally change
the
terms of the PSCBC Resolution 1 of 2012 without the concurrence of
the Minister of DPSA. Dissatisfied
with
the
responses received Mr Ramaila referred a dispute concerning unfair
discrimination to the Commission for Conciliation, Mediation
and
Arbitration (“CCMA”) for conciliation on 09 May 2017
which remained unresolved and finally came before the Labour
Court
for adjudication.
The
Collective agreements and other instruments/policies pertinent to the
appeal:
[13]
A precursor to the three instruments in issue is the PSCBC Resolution
9 of 2001: “AGREEMENT ON
IMPROVEMENT IN CONDITIONS OF SERVICE
OF PUBLIC SERVICE FOR THE PERIOD 2001/2002, 2002/2003 AND 2003/2004
AND OTHER MATTERS OF MUTUAL
INTEREST”. It did not make any
distinction between first-time entrants and those employees already
in the public service
with regard to the period of eligibility for
pay progression. The duration for the eligibility which applied to
all employees in
the public service was 12 months. Clause 4.6 of the
PSCBC Resolution 9 of 2001 provided as follows:
‘
4.
PAY PROGRESSION
4.6
payments in terms of the pay progression system shall be effected for
the first time on
1 July 2002 and thereafter on 1 July each year.
’
[14]
More central to this appeal is Clause 4 of the PSCBC Resolution 1 of
2012: “AGREEMENT ON SALARY
ADJUSTMENTS AND IMPROVEMENTS ON
CONDITIONS OF SERVICE IN THE PUBLIC SERVICE FOR THE PERIOD
2012/13-2014/2015” which provides:
‘
4.
PAY PROGRESSION
4.1
Parties agree to amend clause 4.6 of
PSCBC Resolution 9 of 2001
in order to develop and professionalise
the public service.
4.2
The qualifying period for
first-time participants will be extended from 12 to 24 months. The
amendment will take effect from 1 July
2012.
4.3
Upon completion of the 24 months
period, an eligible first-time participant will qualify for pay
progression annually.’
[15]
Following the coming into effect of the PSCBC Resolution 1 of 2012,
the Minister of DPSA issued the
Incentive Policy Framework for
Employees on Salary Levels 1 to 12 and those covered by OSD
(full-time and part-time employees including
employees appointed on a
5/8 and 6/8 capacity) who fall within the registered scope of the
PSCBC (the “Incentive Policy Framework”).
The State Law
Advisers fall within the scope of its application. It has four parts,
A to D. Of relevance for present purposes is
part A,
Pay (Notch)
Progression
. It amplifies clauses 4.1 to 4.3 of the PSCBC
Resolution 1 of 2012, pay progression provisions.
[16]
Clause 4.4 of the Incentive Policy Framework defines first-time
participants as new appointees to the
public service in a production
or supervisory or managerial OSD or non-OSD post, which includes
employees who previously resigned
from the public service and who are
re-appointed in the public service. Part A thereof regulates pay
progression as follows:
‘
5
Employees are eligible for pay progression, effective from 1 July of
a year.
6.
With effect from 1 July 2012, the qualifying period for pay
progression for First
(1
st
) time participants, is
twenty–four (24) months. In practice, the qualifying period for
first-time participants will commence
with effect from 1 April 2013
and run until 1 March 2015, with the awarding of the pay progression
for qualifying employees on
1 July 2015.
7.
The Pay progression cycle for employees other than the 1
st
time participants is (12) months. In practice the qualifying period
for these employees will commence on 1 April 2013 and run until
1
March 2014 with the awarding of the pay progression for qualifying
employees on 01 July 2014.
8.
The pay progression cycle for first-time participants does not affect
employees’
probation periods.
9.
Pay progression is not
automatic, but based on actual service in a particular salary
level
for the respective periods as determined in terms of this policy and
based on achievement of at least a satisfactory performance
rating
for the said period in line with departmental specific performance
management systems.
10.
Pay progression shall not be
ef
fected
automatically by PERSA/PERSOL.
11.
Pay Progression is awarded to qualifying employees in addition to
possible annual costs-of-living
adjustments.
12.
Departments shall ensure that the cost of awarding pay progression in
terms of this policy
will not exceed 2% of the specific Department’s
wage bill for any given financial year.’
[17]
The Performance Management Policy, dated and approved by the Chief
Directorate Human Resource of the
department on 21 May 2014, has
a
similar
24 months pay progression eligibility caveat with regard to
first-time appointees in the public service. Its Part C –
“Legislative Framework” provides that the Performance
Management Policy is authorised, influenced, affected and bound
by,
amongst others, the following legislative
instruments:
the Constitution,
[2]
the Labour
Relations Act, 66 of 1995 (“LRA”), the relevant
Collective Agreements of the PSCBC and General Public Service
Sectoral Bargaining Council (GPSSBC). The impugned clauses of the
Policy provide:
‘
6
RECOGNITION OF PERFORMANCE
6.3
Performance Bonuses (Merit Award)
(ii)
A newly appointed employee in the public service shall be eligible
for the pay progression
after serving a continuous period of 24
months…”
6.4
Pay Progression
(ii)
Newly appointed employees in the
Public Service to a post as from 01 July 2012 onwards
shall qualify
for a pay progression only after 24 months of unbroken service…’
The
proceedings in the Labour Court and summary of the Court’s
findings
[18]
Mr Ramaila’s contention both in the Labour Court and this Court
is that the disparate treatment
with regard to the duration for
eligibility for pay progression as contained in Clauses 4.1 to 4.3 of
the PSCBC Resolution 1 of
2012 and Clause 6 of both the Incentive
Policy Framework and the Performance Management Policy of the
department were arbitrary,
irrational and constituted unfair
discrimination against new appointees in the public service.
[19]
Mr Ramaila based his claim of unfair discrimination on “any
other arbitrary grounds”. The
Labour Court was of the view that
the differentiation had to be rationally connected to the purpose or
the object for which it
was designed to achieve which was to “develop
and professionalise the public service”. The Court reasoned
that the
annual pay progression served to reward employees who met
a
certain
expected level of performance. It was not in recognition of the
employees’ length of service as the appellants sought
to argue.
The decision in
Pioneer
Foods v Workers Against Regression & others,
[3]
where it was held that the differentiation
in
respect of terms and conditions of employment on the basis of length
of service was rational and legitimate,
was
distinguishable.
[20]
The Court reasoned that the fact Mr Ramaila was defined as
a
new appointee in the public service triggered
the differentiation. This attribute, the Court found, albeit
appeared
neutral, had the potential to affect Mr Ramaila adversely in a
comparably serious manner in the award of or qualification for the
pay progression. What distinguished Mr Ramaila from his comparators,
the Court held, was the environment where he acquired his
legal
experience, being private practice.
[21]
The Court
further
held that the
differentiation with regard to the duration for the eligibility for
pay progression was not rationally related or
connected to the object
sought to be achieved and consequently unfairly discriminated against
Mr Ramaila and new appointees in
the public service.
[22]
Pertaining to Mr Ramaila’s second cause of action, review under
s 6(2) of the Promotion of Administrative
Justice Act, 3 of 2000
(“PAJA”), the Labour Court reviewed and set aside Clauses
of 4.1 to 4.3 of the Collective Agreement:
PSCBC Resolution 1 of
2012, on the grounds that the differentiation provided for therein,
with regard to the duration for eligibility
for annual pay
progression to which new appointees were subjected to, was not
rationally connected to the object sought to be achieved,
which was
“to develop and professionalise the public service”.
Insofar as Clauses 4.1 to 4.3 of the Collective Agreement:
PSCBC
Resolution 1 of 2012, constituted “a deemed ministerial
determination” by virtue of s 5 of the Public Service
Act, the
Court held that there was no rational relationship between the
exercise of the relevant power and the purpose for which
it was given
for its application.
The
basis of the appeal and analysis
[23]
The appellants’ attack of the Labour Court’s findings is
premised
on multiple grounds. In my
view, it is not necessary to traverse a number
of them
at
any great length. Both parties filed prodigious heads of argument
canvassing various issues but deal to a very limited extent
with two
condensed questions of relevance to the adjudication of the appeal.
Properly distilled the germane issues arising are
:
23.1 First
,
whether Mr Ramaila’s claim of unfair discrimination “on
any other arbitrary ground” is justiciable under s 6(1)
of the
Employment Equity Act, 55 of 1998 (“EEA”) which provides
that:
‘
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or
more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language, birth or
any
other arbitrary ground
.’
23.2
Second,
whether Clauses 4.1 to 4.3 of the Collective Agreement, PSCBC
Resolution: 1 of 2012; Clause 6 of both the Incentive Policy
Framework issued by the Minister of DPSA and the Performance
Management Policy issued by the department constitute administrative
action and thus reviewable under s 6 of PAJA.
The
alleged unfair discrimination claim
[24]
This Court has recently in
Naidoo
& others v Parliament of the Republic of SA
[4]
comprehensively
dealt
with the construction to be placed on the phrase “any other
arbitrary ground” as set out in 6(1) of the EEA. The
fundamental question before the Court in
Naidoo
was
whether
a “narrow” or a “broad” interpretation of the
compass of the phrase “any other arbitrary ground”
should
prevail. The distinction suggested, on the one hand, that the compass
is limited to a ground which is analogous to the listed
grounds, and
on the other, posited conduct required to be arbitrary, in the sense
of being “capricious”. This Court,
after a careful
examination of the jurisprudence of the Constitutional Court
decisions of this Court and the Labour Court and some
academic
writings, endorsed a narrow compass interpretation
thereof
.
It held that the expression was not meant to be a
self-standing ground, but rather one that referred back to the
specified
grounds, so that a ground of a similar kind would fall
within the scope of s 6.
[5]
[25]
Insofar as Mr Ramaila’s claim of alleged discrimination fell
within the ambit of “any other
arbitrary ground” the onus
was on him to prove on
a
balance of probabilities that the
period
of eligibility to receive the annual pay progression is
not
rational and amounts to unfair discrimination.
[6]
In
Harksen
v
Lane NO
[7]
Goldstone
J
formulated the test for discrimination
[8]
as
follows:
'
(a)
Does
the provision differentiate between people or categories of people?
If so, does the differentiation bear
a rational connection to a
legitimate government purpose? If it does not, then there is a
violation of s 8(1). Even if it does
bear a rational connection, it
might nevertheless amount to discrimination.
(b)
Does the
differentiation amount to unfair discrimination? This requires a
two-stage analysis:
(i)
Firstly, does the differentiation amount to "discrimination"?
If it
is on a specified ground, then discrimination will have been
established
. If it is not on a specified ground, then whether or
not there is discrimination will depend upon whether, objectively,
the ground
is based on attributes and characteristics which have the
potential to impair the fundamental human dignity of persons as human
beings or to affect them adversely in a comparably serious manner.
(ii)
If the differentiation amounts to "discrimination", does it
amount to "unfair
discrimination"? If it has been found to
have been on a specified ground, then unfairness will be presumed. If
on an unspecified
ground, unfairness will have to be established by
the complainant. The test of unfairness focuses primarily on the
impact of the
discrimination on the complainant and others in his or
her situation.
If,
at the end of this stage of the enquiry, the differentiation is found
not to be unfair, then there will be no violation of s
8(2).
(c)
If the discrimination
is found to be unfair then a determination will have to be made as to
whether the provision can be justified
under the limitations clause
(s 33 of the interim Constitution).
(My emphasis)
[26]
Mr Ramaila contends that he has pleaded sufficiently the facts
required to establish a cause of action
and
has
thus
discharged
the onus in terms of s 11(2) of the EEA. The arbitrary ground, he
contends, is “
clearly
defined and borne of the facts of the case.”
In his statement of claim, with reference to his performance
assessment outcome, he states :
[9]
‘
23.
It is apparent from the contents of annexure “SDR7” that
the reason I did not receive a pay progression
is that in terms of
the Performance Management Policy …of the DoJ I-
23.1
am characterised as a “new appointee to the public service”
and
23.2
had not yet completed 24 (twenty-four) months at the time of the
outcome of the performance assessment for the
assessment period in
question
i.e.
financial year: 1 April 2015 to 31 March 2016.’
He
also states:
[10]
‘
50.4
The first time participants are subjected to the 24 (twenty-four)
months simply because of their characterisation
or status as “not
having being employed in the public service before” or “having
previously resigned from the
public service”. This
characterisation has the effect of further subjecting the first time
participants to unequal treatment
which is irrational and devoid of
fairness.’
[27]
He testified that he was treated differently for not having being
associated with the “public
sector environment” prior to
his appointment and said
:
‘
It
is a kind of a characteristic that is attached to me or an attribute
that is attached to me that is now being to distinguish
or
differentiate me from the other people and so there is no any other,
it is not to say if they get, they got this pay progression
because
outstanding or ja extraordinary performance it is simply on the basis
of the fact that I am the newcomer and they are they
old guys in the
public sector so am new that is.(sic)’
[28]
The prohibition which the equality provision in the Constitution, and
by parity of reasoning the EEA,
is directed at
is the differentiation which impairs the fundamental dignity of human
beings or in some other way affect persons adversely in a
comparably
serious manner.
[11]
In
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others,
[12]
the Constitutional Court distinguished
the
violation of dignity and self-worth under the equality provisions
from a violation of dignity under section 10 of
the Bill of
Rights. It held that the former is based on the impact that the
measure has on a person because of membership of an
historically
vulnerable group that is identified and subjected to disadvantage by
virtue of certain closely held personal characteristics
of its
members; it is the inequality of treatment that leads to and is
proved by the indignity. The violation of dignity under section
10, on the other hand, contemplates a much wider range of situations.
It offers protection to persons in their multiple identities
and
capacities. Inequality is established not simply through group-based
differential treatment, but through differentiation which
perpetuates
disadvantage and leads to the scarring of the sense of dignity and
self-worth associated with membership of the group.
Conversely, an
invasion of dignity is more easily established when there is an
inequality of power and status between the violator
and the
victim.
[13]
[29]
What is instructive from
Naidoo
supra
is that the insertion of the word “
other”
supports the conclusion that the phrase “any
other
arbitrary
ground” was not meant to be a self-standing ground, but rather
one that referred back to the specified grounds,
so that a ground of
a similar kind would fall within the scope of section 6.
[14]
Being a newcomer in the public service or “newness” as Mr
Ramaila termed it, as an attribute which he argued was used
by the
appellants to differentiate him, is far removed from any of the
specified grounds or any ground akin or analogous to them.
I am
unpersuaded that the conduct of the appellants, objectively analysed
on the ground of Mr Ramaila’s attribute, that of
being new in
the public service, had the potential to impair his fundamental human
dignity in a comparably serious manner. He,
therefore, failed to
discharge the onus.
To
this end, I am of the view that, the Labour Court erred in concluding
that he was discriminated against as envisaged in s 6(1)
on “any
other arbitrary grounds.”
[30]
The pay progression system is not without its own difficulty. The
impact of the injunction is that
employees other than those defined as new appointees, qualify for
annual pay progression upon achieving
performance assessment outcome
of a particular fiscal year and do not serve the same 24 months
qualifying period as the new appointees.
This is despite the fact
that the employees other than the new appointees would have been
appointed into the posts of the same
grades and levels; at the same
time as the new appointees; would have commenced at the same salary
notches; performing the same
work of equal value; and having the same
KRA as the new appointees, and achieved the same required performance
rating of 100%.
It is not
surprising
that the impugned instruments brought
about
a
considerable degree
of despondency because it resulted in pay disparity between Mr
Ramaila and his comparators. This notwithstanding,
as this Court
observed in Naidoo
supra
,
n
ot all wrongful conduct is
justiciable under s 6(1) of the EEA because there is no self-standing
ground of arbitrariness or capriciousness.
In summary, whatever the
possible adverse consequences caused by the pay progression system,
these consequences did not constitute
discrimination of a kind that
could justify a claim in terms of s 6 of the EEA.
The review under PAJA
[31]
Mr Ramaila’s second cause of action hinges on PAJA and the
alleged irrationality of the pay progression
system.
As
already discussed the parties to the collective agreement, PSCBC
Resolution 1 of 2012, agreed to amend Clause 4.6 of PSCBC Resolution
9 of 2001 in order “
to develop
and professionalise the public service”
by
inter alia
,
extending the qualifying period in respect of eligibility to receive
pay progression for the first-time participants from 12 to
24 months.
It was common cause that “to develop and professionalise the
public service” constituted the object sought
to be achieved
which Mr Ramaila conceded was legitimate.
[32]
Mr Ramaila contended in the Labour Court
that
PSCBC Resolution 1 of 2012, the
Incentive Policy Framework, and the Performance Management Policy,
constituted administrative action
in terms of s 1(a)(ii) of PAJA and
thus reviewable on the basis that the differentiation against the new
appointees, with regard
to the duration for the eligibility for
annual pay progression:
[32.1]
is not rationally connected to the stated objective sought to be
achieved, namely, to develop and professionalise
the public service
(s 6 (2)(f)(ii)(aa) of PAJA) or
[32.2]
is unconstitutional or unlawful in that it unfairly discriminated
against the new appointees in the public service
(s 6 (2)(i) of
PAJA).
As
a consequential relief, Mr Ramaila urged
the Labour Court to reviewed and set aside the impugned instruments.
[
33
]
The Labour Court was persuaded that Clauses 4.1 to 4.3 of the PSCBC
Resolution 1 of 2012 are deemed to
be a determination made by the
Minister in terms of s 5(6)(a) of the Public Service Act. In
addition, the Court found that
the Incentive Policy Framework
constituted a directive issued by the Minister of DPSA in terms of s
5(6)(b) of the Public Service
Act. As already alluded to, the Court
held that the impugned instruments constituted administrative action
as defined in s 1(a)(ii)
of PAJA and were reviewable on the basis
that the differentiation provided therein is not rationally connected
to the stated objective
sought to be achieved.
Insofar
as Clauses 4.1 to 4.3 of the Collective Agreement: PSCBC Resolution 1
of 2012, constituted “a deemed ministerial determination”,
by virtue of s 5 of the Public Service Act, the Court held that there
was no rational relationship between the exercise of the
relevant
power and the purpose for which it was given for its application.
[34]
The
Labour Court relied on the decision of the Full Bench in
Free
Market Foundation V Minister of Labour and Others
[15]
as support for its finding that the impugned instruments were
reviewable. Murphy J expressed himself in these terms:
‘
[81]
From the foregoing discussion it is evident that any determination of
whether a bargaining council resolution is administrative
action
in terms of PAJA will depend in the final analysis on the
peculiar facts. I incline to agree with Cosatu, Numsa, the
Minister
and the bargaining councils that PAJA ordinarily will apply and thus
that the decision of the bargaining council will
be subject to PAJA
review. The strongest argument against such a conclusion may be that
the resolution, being deliberative, is
not a decision of an
administrative nature. Unfortunately, as said, no argument was
presented in relation to this issue, which
was not specifically
raised in the affidavits. If the decision is administrative action,
then it will be reviewable on grounds
of reasonableness (at least
rationality), legality and due process. If, on the other hand,
the bargaining council resolution
is not administrative action under
PAJA, it still will be subject to rationality and legality
review under the rule of law
provision in s 1 of the
Constitution. Review in terms of the principle of legality may
involve a lower standard of scrutiny
than a reasonableness review
under PAJA, but it still can be far-reaching and includes
the requirements of rationality, legality
and a duty not to act
arbitrarily, capriciously or with ulterior purpose. There must
be a rational relationship between the
exercise of the power and the
purpose for which the power was given. Moreover, there is explicit
statutory protection against discrimination.
In terms of s
32(3)
(g)
of
the LRA the collective agreement may not discriminate against
non-parties, a matter I will discuss later. And hence
the charge
of inconsistency with the Constitution for want of adequate judicial
supervision of the bargaining council process is
not
sustainable.’
[16]
[35]
I do not read
Free
Market Foundation
(FMF) to be definitive of the question that a bargaining council
collective agreement is reviewable under PAJA. The views articulated
by Murphy J
supra
were
obiter
and show that collective agreements are not free from judicial checks
and supervision. FMF in the main resolved into two related
decisive
questions. The first was the nature and scope of judicial review
available in relation to the decisions and actions involved
in the
extension of bargaining council collective agreements to
non-parties. The second, was whether the bargaining councils
and the
Minister were obliged to act in the public interest when extending
such agreements. The answer to the first question depended,
to some
extent, upon whether the decisions and actions in question
constituted “administrative action” in terms
of PAJA and
were in consequence reviewable on the grounds specified in s 6 of
PAJA.
At
para 118 of FMF Murphy J said:
‘
[118]…
There
is a possibility that bargaining council decisions may be
reviewed on PAJA or rationality grounds, but, even if
they cannot be
,
the discretionary power of the ‘Minister to extend minority
collective agreements certainly is reviewable on PAJA grounds
or for
rationality, and the attenuated power to review the extension of
majority collective agreements is a reasonable and justifiable
limitation upon the rights of administrative justice, by reason of
the legitimate and rational basis for the application of
the
majoritarian principle in collective bargaining, the proportional
safeguards afforded by the exemption system, the protection
against
discrimination granted by s 32(3)
(g)
,
and the common law.’ (My emphasis)
[36]
It is therefore necessary to examine the question of the scope of the
definition of administrative
action. An administrative
action is defined in s 1 of PAJA as:
‘
(A)ny
decision taken, or any failure to take a decision, by —
(a)
an organ
of state, when —
(i)
exercising a power in terms of the Constitution or a
provincial constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation; or
(c)
a natural or
juristic person, other than an organ of state, when exercising a
public power or performing a public function in terms
of an
empowering provision, which adversely affects the rights of any
person and which has a direct, external legal effect.
.'
[37]
A decision means:
‘
(A)ny
decision of an administrative nature made, proposed to be made, or
required to be made, as the case may be, under an empowering
provision.’
[38]
The terms “administrative power”, “public power”
or “public function”
are to a great extent
synonymous
or have the same import
in
that they refer to the power conferred upon an administrator or
official to perform a specific function in the public interest.
The
source of this administrative power/public power or public function
is the legal instrument (empowering statute or empowering
provision)
from which the administrator or official derives his or her power to
perform the function in question.
[17]
The key question is whether the task itself is administrative in
nature. The test turns not on identification of the functionary
but
on the function exercised.
[18]
A bargaining council
vested
with legal personality by the provisions of the LRA, exercising
public powers and performing public functions,
is an organ of
state.
[19]
[39]
One of the purpose
s
of the LRA
is
to provide a framework within which employees and
their trade unions, employers and employers'
organisations can-collectively
bargain to determine wages, terms
and conditions of employment and other matters of mutual
interest.
[20]
A
collective agreement is a written agreement concerning terms and
conditions of employment or any other matter of mutual interest
concluded by one or more registered
trade
union
,
on the one hand and, on the other, one or more employers; one or more
registered
employers'
organisations
;
or one or more employers and one or more registered
employers'
organisations.
[21]
[40]
When a bargaining council concludes a collective agreement regulating
conditions of services it does
so as an organ of state or as a
juristic person exercising a public power or performing a statutory
public function under the LRA.
However, a collective agreement
remains a product of collective bargaining described
in
Metal & Allied Workers Union v Hart Ltd,
as
being “a haggle or wrangle” process so as to arrive at
some agreement on terms of ‘give and take”.
[22]
It has deliberative characteristics.
The
subject matter for negotiations with a view to sealing a collective
deal is of a private nature.
[41]
Section 31 of the LRA sets out the
binding nature of a collective agreement concluded in a bargaining
council as follows:
‘
Subject
to the provisions of section 32 and the
constitution of the bargaining council, a collective
agreement concluded in a bargaining council binds—
(a)
the parties to the bargaining council who are also parties
to the collective
agreement;
(
b
)
each party to the
collective agreement
and the
members of every other party to the
collective agreement
in
so far as the provisions thereof apply to the relationship between
such a party and the members of such other party; and
(
c
)
the members of a registered
trade union
that is a
party to the
collective agreement
and the employers
who are members of a registered
employers’
organisation
that is such a party, if the
collective
agreement
regulates—(i
(i)
terms and
conditions of employment; or
(ii)
the conduct of
the employers in relation to their
employees
or
the conduct of the
employees
in
relation to their employers.’
[42]
The Collective Agreement: PSCBS Resolution 1 of 2012 binds the
employer and employees who are employed
by the State and fall within
the registered scope of the bargaining council.
[23]
Mr Ramaila acknowledged that, although he is not a union member, this
was binding upon him. In addition to pay progression, it
provides,
inter
alia,
for salary adjustments, long service recognition, night shift
allowance, shop steward leave, decent work and other conditions of
service. It was signed by the State as the employer and the Trade
Unions: DENOSA, NEHAWU, POPCRRU, SADTU, and SAPU.
[43]
The “right” articulated in the meaning of an
administrative action under s 1 of PAJA is
a “right” in a
wide sense.
[24]
Employees
covered by the PSCBC
R
esolution
1 of 2012 would ordinarily acquire the right to receive pay
progression on the basis of this collective agreement upon
fulfilment
of the conditions precedent. The period of eligibility to receive pay
progression for first-time entrants into the public
service as
contained in PSCBS Resolution 1 of 2012 adversely affects Mr
Ramaila’s right and those similarly situated. This
is so
because Mr Ramaila was denied
an
annual pay progression when he had achieved the same performance
assessment outcome for the financial year 2015/2016 as his
comparators;
he met the same job requirements; he was subjected to
the same probation period; he had signed the performance agreement
with the
same KRAs; he had been appointed on the same salary scale
and started at the same minimum salary notch of as his counterparts
and
are doing the same work of equal value.
[44]
Against the background sketched, a collective agreement, regulating
conditions of service of employees
falling within its coverage,
although adversely affecting Mr Ramaila, is purely contractual in
nature and has no external legal
effect outside the bargaining
council. Therefore, it does not constitute an administrative action
reviewable under PAJA.
It
does not end here because Mr Ramaila argued that Clauses 4.1 to 4.3
of the PSCBC Resolution 1 of 2012 are deemed to be determination
made
by the Minister in terms of s 5(6)(
a
)
of the Public Service Act whereas the Incentive Policy Framework is a
directive issued by the Minister of DPSA in terms of s 5(6)(
b
)
of the Public Service Act. Consequently, he contended, the impugned
instruments are administrative action subject to review under
s 6 of
PAJA.
[45]
Section 5 of the Public Service Act provides in part:
‘
(4)
Any act by any functionary in terms of this Act may not be contrary
to the provisions of-
(a)
any collective
agreement contemplated in item 15
(i)
of
Schedule 7 to the Labour Relations Act; or
(b)
any collective
agreement concluded by a bargaining council established in terms of
the said Act for the public service as a whole
or for a particular
sector in the public service.
(6)
(a)
Any provision of a collective agreement contemplated
in subsection (4), concluded on or after the commencement of the
Public Service Amendment Act, 2007
, shall, in respect of conditions
of service of employees appointed in terms of this Act,
be deemed
to be a determination made by the Minister in terms of section 3(5).
(b)
The Minister may, for
the proper implementation of the collective agreement, elucidate or
supplement such determination by means
of a directive, provided that
the directive is not in conflict with or does not derogate from the
terms of the agreement.’
[46]
A deeming provision must always be construed contextually and in
relation to the legislative purpose.
[25]
In
S
v Rosenthal
[26]
it was said that:
‘
The
words ‘shall be deemed’ ('word geag' in the signed,
Afrikaans text) are a familiar and useful expression often
used in
legislation in order to predicate that a certain subject-matter, eg a
person, thing, situation, or matter,
shall
be regarded or accepted for the purposes of the statute in question
as being of a particular
, specified
kind whether or not the subject-matter is ordinarily of that kind.
The expression has no technical or uniform connotation.
Its precise
meaning, and especially its effect, must be ascertained from its
context and the ordinary canons of construction.’
[47]
From the preamble one of the purposes of the Public Service Act is to
regulate the conditions of employment.
In terms of s 3 of the
Public Service Act, the Minister of DPSA is responsible for
establishing
norms and standards relating to
the
conditions of service and other employment practices for employees
and labour relations in the public service.
[27]
To give effect to this, the Minister
is
required to make regulations, determinations
,
issue
directives,
and perform any other acts provided for in the Act.
[28]
Subject to the LRA and any collective agreement he may make
determinations regarding any conditions of service of employees
generally
or for categories of employees, including determinations
regarding salary scale
s
for
all employees or salary scales for particular categories of employees
and allowances for particular categories of employees.
[29]
This, in my view, is the textual context upon which the deeming
provision ought to be construed.
[48]
To my mind, the import of the words “shall…. be deemed
to be” in s 5(6)(
a
) is “shall… be regarded
as”. The provisions of Clauses 4.1 to 4.3 of the PSCBC
Resolution 1 of 2012 are therefore,
in every practical sense, a
determination made by the Minister of DPSA in terms of s 3(5) of the
Public Service Act.
[49]
The impugned provisions of the Incentive Policy framework expand the
PSCBC Resolution 1 of 2012 and
seeks
to
elucidate its pay progression provisions. It does not derogate from
the terms of the resolution
but
regurgitates
its Clauses 4.1 to 4.3 insofar as it provides that the qualifying
period for pay progression for the first time participants
is 24
months whereas of the other employees 12 months.
[50]
Section 5(4) of the Public Service Act would require that the acts of
any functionary subscribe to
the sanctity and primacy of the
collective agreements in that a functionary may not act contrary to
the provision of the collective
agreement. What s 5(6)(
a
)
does is to give more impetus to the terms of collective agreements
without derogating from its essential provisions. The Minister
of
DPSA has, by means of the Incentive Policy Framework, sought to
elucidate or
supplement terms of the collective agreement as envisaged in s 5
(6)(
b
).
[51]
The ministerial determination and the directive referred to s 5(6)(
a
)
and
(
b
)
has their basis or source
in
the
collective agreement. Put differently, t
he
juridical act introducing the differentiation is founded in the
collective agreement.
As I see it,
although s 5 changes the complexation of a collective agreement into
a ministerial determination neither the deeming
provision nor the
Minister of DPSA’s directive would mutate the contractual
nature of a collective agreement, which regulates
purely employees’
conditions of service, into administrative action. To hold otherwise
would be a bridge too far. Not much
needs to be said about the
administrative nature of the Performance Management Policy. It
remains purely an
employment
and labour relationship issue which does not fall within the ambit of
administrative action.
Conclusion
[52]
In conclusion
,
Mr Ramaila’s unfair
discrimination claim based on “any other arbitrary ground”
is not justiciable under s 6 of
the EEA. Clauses 4.1 to 4.3 of the
PSCBC Resolution 1 of 2012; and Clauses 6 of the Incentive Policy
Framework and the Performance
Management Policy are not
administrative action within the meaning of PAJA and therefore not
reviewable under s 6 of PAJA. The
ineluctable conclusion is that the
Labour Court erred in finding that there had been unfair
discrimination against Mr Ramaila and
reviewing and setting aside
PSCBC Resolution 1 of 2012. The Labour Court’s decision falls
to be upset.
[53]
Mr Mokhari asked for costs consequent upon the employment of two
counsel. This would be inappropriate
in the circumstances where Mr
Ramaila approached this Court to vindicate his constitutional right
to equality. Regrettably for
him the case he pleaded failed him. In
any event, such orders are rarely made particularly where parties are
still in pursuit of
an employment relationship. I make the following
order:
Order
1.
The appeal is upheld with no order as to costs.
2.
The order of the Labour Court is set aside and
in
its
instead is substituted the
following:
‘
The
applicant’s claim is dismissed with no order as to costs.’
_________________________
MV
Phatshoane
Acting
Deputy Judge President - The Labour Appeal Court
Davis
JA and Murphy AJA concur in the judgment of Phatshoane ADJP
APPEARANCES:
For
The First, Second,
and
Third Appellants
:
Adv W.R Mokhare SC assisted by adv L X Dzai
Instructed
by State Attorneys (Cape Town)
For
The First Respondent: Mr Sekhoshe Days Ramaila (In person)
[1]
In
terms of Rule 5(17)- If the appellant fails to lodge the record
within the prescribed period, the appellant will be deemed
to have
withdrawn the appeal, unless the appellant has within that period
applied to the respondent or the respondent's representative
for
consent to an extension of time and consent has been given. If
consent is refused the appellant may, after delivery to the
respondent of the notice of motion supported by affidavit, apply to
the Judge President in chambers for an extension of time.
The
application must be accompanied by proof of service on all other
parties. Any party wishing to oppose the grant of an extension
of
time may deliver an answering affidavit within 10 days of service on
such party of a copy of the application.
[2]
The
Constitution of the Republic of South Africa 1996.
[3]
(2016)
37 ILJ 2872 (LC)
.
[4]
(2020)
41 ILJ 1931 (LAC).
[5]
(2020)
41 ILJ 1931 (LAC) a
t
1942 para 26.
[6]
EEA
s11(2)(a)(b)(c).
[7]
[1997] ZACC 12
;
1998
(1) SA 300
(CC)
.
[8]
Harksen
v Lane NO
[1997] ZACC 12
;
1998
(1) SA 300
(CC)
para
53.
[9]
Ad
para 23 statement of claim.
[10]
Ad
para 50.4 statement of claim.
[11]
Prinsloo
v Van der Linde and Another
[1997] ZACC 5
;
1997
(6) BCLR 759
(CC) at 774 para 331.
[12]
1998
(12) BCLR 1517
(CC) at para 124.
[13]
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
1998
(12) BCLR 1517
(CC) at para 125.
[14]
Naidoo
para
25.
[15]
2016
(4) SA 496 (GP).
[16]
at
526-527 para 81
[17]
See
Administrative Law Yvonne Burns 4
th
Edition LexixNexis at 137- an authority cited therein.
[18]
President
of the Republic of SA & others v SA Rugby Football Union &
others
2000
(1) SA a
t
67 para 141.
[19]
FMF
supra at 541 para 121; see also
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC) at 364-3566 paras 40-45;
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works
andOothers
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA)
at 323 para 24.
[20]
Section
1 of the LRA.
[21]
Section
213 of the LRA.
[22]
(1985)
6 ILJ 478 (IC) at 493 para 35.
[23]
Clause
2 of PSCBC Resolution 1 of 2012 records the scope of its
application.
[24]
Bullock
NO and Others v Provincial Government, North West Province, and
Another
2004
(5) SA 262
(SCA); ([2004]
2 All SA 249)
at 271 para 19 where it
was held with reference to authorities cited therein that('It may be
that a broader notion of ''right''
than that used in private law may
well be appropriate.')
[25]
Eastern
Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River
Safari
2018 (4) SA 206
(SCA) at 218A para 34.
[26]
1980
(1) SA 65
(A
)
at
75G - H.
[27]
Section
3 (1)(
c
)
(
d
).
[28]
Section
2 of the Public Service Act.
[29]
section
3(5)(
a
)
of the Public Service Act.