DENOSA v WESTERN CAPE DEPARTMENT OF HEALTH and OTHERS (CA 17/2014) [2016] ZALAC 72 (12 May 2016)

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[2016] ZALAC 72
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DENOSA v WESTERN CAPE DEPARTMENT OF HEALTH and OTHERS (CA 17/2014) [2016] ZALAC 72 (12 May 2016)

THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA 17/2014
In
the Matter between:
DEMOCRATIC
NURSING ORGANISATION
OF
SOUTH AFRICA (DENOSA) OBO D J DU
TOIT
AND ANOTHER
Appellant
and
WESTERN
CAPE DEPARTMENT OF
HEALTH
First

Respondent
PUBLIC
HEALTH AND SOCIAL
DEVELOPMENT
SECTORAL BARGAINING                           Second

Respondent
COLIN
RANI
NO                                                                        Third

Respondent
Heard:
17 March 2016
Delivered:
12 May 2016
Summary:
Interpretation and application of Occupations for Specific
Dispensation for Nurses (OSD) – employer translating employee

to Assistant Manager - employees contending to have been incorrectly
translated – commissioner finding that employees correctly

translated – appellant contending that the OSD agreement is
unambiguous and that the translation measures must be applied
so that
employees be translated to a category of Deputy Manager –
appellant failing to distinguish between Assistant Manager:
Nursing
(Head of Nursing Services) operating to small district hospitals and
Deputy Manager: Nursing (level 1 and 2 hospitals)
operating at large
the translation tables leading to the conclusion that employees
correctly translated. Appeal dismissed with
costs.
Coram:
Davis, Musi
et
Sutherland JJJA
JUDGMENT
Introduction
[1]
This appeal against a judgment
of the Labour Court, which refused to review and set aside an
arbitration award, concerns the interpretation
and application of the
Collective Agreement, Occupations for Specific Dispensation for
Nurses (‘OSD Agreement’) signed
on 10 December 2007 by
the relevant parties. The dispute which, now requires the
determination of this Court, concerns the proper
approach which
should have been adopted by the arbitrator when interpreting and
applying this agreement.
The
factual background
[2]
Much of the dispute is common
cause. The OSD agreement is a national collective agreement which
provides for a new grading system
and salary levels. Prior to the
conclusion of the OSD agreement, all of the nurses represented by the
appellant held the position
of Nursing Service Managers at salary
levels 9 or 10. The OSD agreement was concluded under the auspices of
the Public Health and
Social Development Sectorial Bargaining Council
(‘the Bargaining Council’). The agreement provided for a
new grading
system and new salary levels. For the purposes of this
case each nurse was ‘to be translated’ into the new
organisational
structure which included the post of Deputy Manager:
Nursing. It is not disputed that all of these nurses have the
qualifications
and experience to be translated into the post of
Deputy Manager: Nursing. The key question raised by this case is
whether the post
of Deputy Manager: Nursing is the legally
appropriate position into which these nurses are to be appointed
pursuant to the OSD
agreement, read together with additional
documentation to which I shall make reference presently.
[3]
It is also common cause that
the OSD agreement was a collective agreement as defined in terms of s
23 of the Labour Relations Act
66 of 1995 (‘LRA’). It is
an agreement which is applicable nationwide to the public health
sector and therefore to
every health sector in each province of South
Africa.
Key
provisions of the OSD agreement
[4]
The following provisions of the
OSD agreement are of application to the resolution of the present
dispute: Clause 1 provides for
the objectives of the agreement
including, ‘
to
introduce, differentiated salary scales by identified categories of
nursing professionals based on a new remuneration structure’
.
[5]
Clause 3.2 reads as follows:
‘
IMPLEMENTATION
DIRECTIVE
To
give effect to this agreement, the implementation of the OSD will be
a determination and implementation directive issued by the
Minister
for the Public Service and Administration in term s of s 3(3)(c) of
the Public Service Act, 1994, read with Public Service
Regulations,
2001, Chapter 1, Part 1/ G.
’
[6]
Clause 3.2.5 entitled
‘
translation measures’
contains the following:
‘
TRANSLATION
MEASURES
Measures
to facilitate translation from the existing dispensation to
appropriate salary scales attached to the OSD based on the
following
principles:
3.2.5.1
No person will receive a salary (notch or package) that is less than
what he/she received on 1 July 2007 prior to the implementation
of
the OSD.
3.2.5.2
Translation could be done by means of two phases (steps)
(i)
1
st
Phase
Minimum
translation to the appropriate salary scale attached to posts (and
grades in respect of production levels), as contained
in Annexure B
to this agreement. This implies an implementation adjustment in
salary to at least the next higher notch on the salary
scale attached
to the post to which the employee is translated.
(ii)
2
nd
Phase (in respect of production levels/grades)
Re-calculation
of relevant experience obtained by a person who occupies a post on a
production level after registration in the relevant
nursing category,
based on full years service/experience as on 31 March 2007, in order
to award a higher salary at a production
level subject to and within
the limits of the measure for such recognition contained in Annexure
C.
If
the nurse is eligible for a higher notch on the scale attached to the
specific grade or for translation to a higher grade (scale
attached
to the higher production grade) in terms of the limits of the
measures for such recognition contained in Annexure C then
the higher
notch or grade in terms of the re-calculation basis applies.
’
[7]
In an annexure to this
agreement headed “
Career
Streams, Salary Scales, Appointment Requirements, Recognition of
Experience on Appointment and Grade Progression / Promotion

Requirements”
the
following appears:
PAR
JOB
TITLE
SALARY
LEVEL AND SCALE
APPOINTMENT
REQUIREMENTS
RECOGNITION
OF APPROPRIATE EXPERIENCE AT APPOINTMENT
GRADE
PROGRESSION /POST PROMOTION REQUIREMENTS
1.7
Assistant
Manager Nursing (Area/Head of Nursing Services)
PN
– A7
R
235,659
R
242,730
R
250,011
R
257,511
R
265,236
R
273,192
Basic
qualification accredited with the SANC in terms of Government
Notice 425 (i.e. diploma/degree in nursing) or equivalent

qualification that allows registration with the SANC as a
Professional Nurse.
A
minimum of 8 years appropriate / recognisable experience in
nursing after registration as Professional Nurse with the SANC
in
General Nursing.  At least 3 years of the period referred to
above must be appropriate/
recognisable
experience at management level.
None
Promotion
to higher vacant advertised post.
1.8
Deputy
Manager Nursing
(Level
1 & 2 Hospitals)
PN
– A8
R
358,218
R
366,964
R
380,034
R
391,434
R
403,176
Basic
qualification accredited with the SANC in terms of Government
Notice 425 (i.e. diploma/degree in nursing) or equivalent

qualification that allows registration with SANC as a
[professional; Nurse
A
minimum of 9 years appropriate/recognisable experience in nursing
after registration as Professional Nurse with the SANC
in General
Nursing.   At least 4 years of the period referred to
above must be appropriate/
recognisable
experience in at management level
None
[8]
It is common cause that the
seven nurses were translated to Assistant Manager Nursing at salary
level PN – A 7. This decision
was taken by the first respondent
in terms of circular H 123/2007. In terms of clause 2.7 of this
agreement, a division was made
regarding assistant and deputy
managers of  nursing services  in district and regional
hospitals:
‘
The
OSD makes provision for two salary scales for the Heads of Nursing
Services at District Hospitals, namely (a) that of Assistant
Manager
Nursing, salary scale R 235,659 x Prog – R 273,192, and (b)
that of Deputy Manager Nursing, salary scale R 358,218
x Prog –
R 403, 176.  It is the view of the Department that the type and
size of a hospital has a direct effect on the
number of beds, the
size of the nursing establishment as well as the direct span of
control and management responsibilities of
the head of Nursing
Services.  At the smaller Level 1 district as well as TB
hospitals direct management responsibilities
will differ from those
of their counterparts at a bigger district and TB hospital, and that
this would justify a difference in
remuneration package. This
distinction is also in line with the norms as applied by the
Department in the development of the Health
Care 2010 organisation
and post structures.
Accordingly
the Department has decided that, based on said criteria, the scale of
Assistant Manager Nursing be attached to all posts
of heads of
Nursing Services at district and TB hospitals smaller than 90 beds.
Furthermore, that the salary scale of Deputy Manager
Nursing be
attached to all posts of Heads of Nursing Services at district and TB
hospitals equal to a larger than 90 beds, as well
as regional
hospitals.’
[9]
This document must be read with
an Implementation Directive issued by the Minister for Public Service
and Administration in terms
of the Public Service Act 103 of 1994.
This document included an annexure entitled ‘
Post,
Grade and Salary Structure
’
in which the following appears :
POST
GRADE
(If Applicable)
JOB
PURPOSE (short description)
SALARY
SCALE – SEE APPENDIX 1
POST
CLASS CODE
JOB
TITLE CODE
6
Assistant
Manager Nursing (Head of Nursing Services)
-
To ensure that a comprehensive nursing treatment and care service
is delivered to patients in a cost effective, efficient
and
equitable manner by Small District Hospitals, including the
overall management of nursing services (i.e. operational,
HR and
finance of the hospitalisation.
-
Ensure compliance to professional and ethical practice.
-
PN
– A7
7
Deputy
Manager Nursing (Level 1&2 Hospitals)
-
-
to ensure that a comprehensive nursing treatment and care service
is delivered to patients in a costs effective, efficient
and
equitable manner by Large District and Secondary Hospitals,
including the overall management of nursing services (i.e.

operational, HR and Finance of the hospital/institution).
-
-
Ensure compliance to professional and ethical practice.
PN
– A8
The
court
a quo
[10]
Third respondent was required
to interpret the OSD agreement in light of these further documents to
which I have made reference
in order to determine that, the members
of the appellant should have been translated not to Assistant
Manager: Nursing but to Deputy
Manager: Nursing at grade PNA 8 with
retrospective effect from 1 July 2007. Third respondent found that
the third respondent in
translating the members of the appellant had
complied with paragraph 3.2 of the OSD agreement and accordingly
dismissed appellant’s
claim.
[11]
Visagie AJ, in the court
a
quo
, found that there was
no basis for the argument that third respondent had misconstrued the
dispute. Furthermore, it could not be
said that the decision
determined that the comprehensive service plan for the implementation
of health 2010 (FCSP) and departmental
circular page 123/2007 had not
given proper effect to the implementation of OSD agreement in terms
of paragraph 3.2 of that agreement.
Appellant’s
case
[12]
Having set out the key provisions of the OSD agreement, I turn to the
case made out by appellant. In essence, appellant argues
that the
provisions to which I have referred support the claim that all of the
nurses represented by appellant fall to be classified
as Deputy
Managers: Nursing (level 1 and 2 hospitals). See paragraph 1.8 of the
OSD agreement. Appellant refers to a further document
attached to the
OSD document, entitled “
translation tables”
; that
is a translation from the old position to the new one provided for in
the OSD agreement.  Appellant relies on the document
entitled
‘
The  translation of professional nurses on salary
levels 9, 10, 11 and 12 to Deputy Manager Nursing (district and
secondary
hospitals)
’. From this document, appellant
contends that it is clear that, for nursing managers previously at
level 9 and at level 10,
the translation to be effected was to the
post of Deputy Manager: Nursing (level 1 and 2 hospitals). The same
document provided
for the quantum of their total package.
[13]
Appellant contended that third
respondent was obliged to give effect to the plain meaning of the OSD
agreement. It was common cause
that the individual nurses had
qualified to be translated as Deputy Mangers: Nursing and the
decision to translate them to Assistant
Managers: Nursing was based
on a justification which fell outside of a collective agreement. A
study of the plain meaning of the
OSD agreement together with the
applicable translation of tables D – F was sufficient to
conclude that no distinction had
been made between level one and
level two hospitals. In short, the conclusion of the third respondent
that appellant’s members
were all Nursing Services Managers of
hospitals with less than 90 beds and hence had been correctly
translated to Assistant Managers
was at war with the plain meaning of
the OSD agreement.
[14]
Mr Stelzner, who appeared
together with Ms Harvey on behalf of the appellant, submitted that
only where there was a lacuna in a
collective agreement or if the
agreement was ambiguous or silent in respect of a particular issue,
could the arbitrator have resolved
the matter by fashioning an
interpretation which was consistent with the overall purpose of the
agreement. Absent such a lacuna,
silence or ambiguity, none of which
according to  Mr Stelzner was the case in  the present
dispute, third respondent
was obliged, as a reasonable decision
maker, to apply the clear wording of the OSD agreement which did not,
in any way, draw a
distinction between the size of hospitals in the
translation process.
Evaluation
[15]
The basis upon which both
appellant and respondent sought to deal with this appeal was in terms
of the test for an arbitration award
as fashioned in
Sidumo
and Another v Rustenberg Platinum Mines Ltd and Others
(
Sidumo
)
[1]
and its further explication in
Herholdt
v Nedbank Ltd and Another
[2]
as follows: “
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds
in
s145(2)
(
a)
of the LRA. For a defect in the conduct of the proceedings to amount
to a gross irregularity as contemplated by
s145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be
unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material
errors of fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient
for an award to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable.”
[16]
A consideration of the context
of the development of this test becomes important in considering its
application in the present dispute
.
In
Sidum
o,
Navsa AJ, faced with a case dealing with an unfair dismissal,
carefully analysed the appropriate standard for review required
in
terms of s 145 of the LRA; that is the provision which empowers any
party to a dispute who alleges a defect in any arbitration

proceedings under the auspices of the Commission for Conciliation
Mediation and Arbitration (CCMA) to apply to the Labour Court
for an
order setting aside the arbitration award. Section 145 (2) provides
that:
‘
A
defect referred to in subsection (1), means-
(a)
that
the commissioner-
(I)
Committed
misconduct in relation to the duties of the commissioner as an
arbitrator;
(ii)
Committed
a gross irregularity in the conduct of the arbitration proceedings;
or
(iii)
Exceeded
the commissioner’s powers; or
(b)
that
an award has been improperly obtained.’
[17]
Within the context of the
present dispute, the question arises as to whether the so called
Sidumo
test which applies in the case of an unfair dismissal, applies
equally to what might otherwise be considered to be an error of
law
.Expressed differently, does an error of law on its own justify a
review in a case such as the present dispute?
[18]
In
Head
of the Department of Education v Mofokeng and Others
[3]
Murphy AJA stated:
‘
However,
sight may not be lost of the intention of the legislature to restrict
the scope of review when it enacted section 145 of
the LRA, confining
review to “defects” as defined in section 145(2) being
misconduct, gross irregularity, exceeding
powers and improperly
obtaining the award. Review is not permissible on the same grounds
that apply under PAJA. Mere errors of
fact or law may not be enough
to vitiate the award. Something more is required. To repeat: flaws in
the reasoning of the arbitrator,
evidenced in the failure to apply
the mind, reliance on irrelevant considerations or the ignoring of
material factors etc. must
be assessed with the purpose of
establishing whether the arbitrator has undertaken the wrong enquiry,
undertaken the enquiry in
the wrong manner or arrived at an
unreasonable result. Lapses in lawfulness, latent or patent
irregularities and instances of dialectical
unreasonableness should
be of such an order (singularly or cumulatively) as to result in a
misconceived inquiry or a decision which
no reasonable decision-maker
could reach on all the material that was before him or her.’
[19]
Murphy
AJA went on to state further at para 33:
‘
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will ex
hypothesi be material to the determination of the dispute. A material
error of this order would
point to at least a prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision
in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon by the decision;
and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the LRA
Provided the right question
was asked and answered by the arbitrator,
a wrong answer will not necessarily be unreasonable. By the same
token, an irregularity
or error material to the determination of the
dispute may constitute a misconception of the nature of the enquiry
so as to lead
to no fair trial of the issues, with the result that
the award may be set aside on that ground alone. The arbitrator
however must
be shown to have diverted from the correct path in the
conduct of the arbitration and as a result failed to address the
question
raised for determination.’
[20]
These
dicta
necessitate a recapitulation of the doctrine of error of law. In the
pre-constitutional era, the jurisprudence with regard to a
review for
error of law was clarified in the seminal case of
Hira
and Another v Booysen and Another.
[4]
Corbett CJ determined, at 93 C-F, that in terms of common law review:
‘
Where
the complaint is that the tribunal has committed a material error of
law, then the reviewability of the decision will depend
basically,
upon whether or not the Legislature intended the tribunal to have
exclusive authority to decide the question of law
concerned. This is
a matter of construction of the statute conferring the power of
decision.
Where
the tribunal exercises powers or functions of a purely judicial
nature, as for example where it is merely required to decide
whether
or not a person’s conduct falls within a defined and
objectively ascertainable statutory criterion, then the Court
will be
slow to conclude that the tribunal is intended to have exclusive
jurisdiction to decide all question, including the meaning
to be
attached to the statutory criterion, and that a misinterpretation of
the statutory criterion will not render the decision
assailed by way
common-law review.   In a particular case it may appear
that the tribunal was intended to have such exclusive
jurisdiction,
but then the legislative intent must be clear
.’
[21]
Since the advent of the
Constitution of the Republic of South Africa Act 1996 (‘the
Constitution’), the concept of review
is sourced in the
justifications provided for in the Constitution and, in particular,
that courts are given the power to review
every error of law provided
that it is material; that is that the error affects the outcome. See
in particular
City of
Johannesburg Metropolitan Municipality v Gauteng development Tribunal
and Others
2010 (6) SA 182
(CC) at para 91; see also the remarks of Malan J (as
he then was) with regard to the implications of
Hira,
supra
in the constitutional
dispensation in
South
African Jewish Board of Deputies v Sutherland N.O and Others
2004 (4) SA 368
(W) at para 27.
[22]
To recap, Navsa AJ said in
Sidumo
at para 105, that the review powers in terms of s 145 ‘
must
be read to ensure that administrative action by the CCMA is lawful,
reasonable and procedurally fair’.
Given that the section must be interpreted to be in compliance with
the Constitution, it would appear that the concept of the error
of
law is relevant to the review of an arbitrator’s decision
within the context of the factual matrix as presented in the
present
dispute; that is a material error of law committed by an arbitrator
may, on its own without having to apply the exact formulation
set out
in
Sidumo
,
justify a review and setting aside of the award depending on the
facts as established in the particular case.
[23]
However, for reasons which are
advanced below, it is not strictly necessary for this Court to make a
final decision with regard
to the role of error of law in this case.
Evaluation
of appellant’s case
[24]
Appellant’s case was, in
essence, based on the submission that the OSD agreement is
unambiguous and that the translation measures
must be applied
accordingly so as to conclude that the individual nurses had to be
translated to a category of Deputy Manager:
Nursing (level one and
two hospitals). In short, the argument advanced by appellant is that,
had the arbitrator accepted the common
cause fact that all of the
individual nurses had the qualifications and experience for the post
of Deputy Manager: Nursing, and
the added fact that they were, prior
to the OSD agreement, on salary levels 9 and 10, the arbitrator
should have applied the OSD
agreement, read together with the
translation tables, and concluded that all of these individual nurses
should have been translated
to Deputy Manager: Nursing in level 1 and
2 hospitals.
[25]
Appellant’s’
argument is further based on an examination of the founding and
answering affidavits. In her founding affidavit,
Ms du Toit on behalf
of the appellant states:
‘
However,
I was not translated on the basis of the duties I was performing as
at 30 June 2007, which would have been the position
of Deputy Manager
Nursing (Level 1 and 2 Hospitals) at grade PN – A8 as provided
for in Part F of the Translation Tables
to the Collective Agreement.
Instead I was translated to the position of Assistant Manager Nursing
(area) at grade PN – A7
in terms of Part D of the Translation
Tables.
My
translation was incorrect: my actual duties performed as at 30 June
2007 differed entirely from those of a Nurse managing an
‘area’.
An ‘area’ refers to a specific department such as the
labour ward, the psychiatric
ward or the orthopaedic ward.
Nurses managing areas were translated in terms of Part D of the
tarnation tables to Assistant
Manager Nursing (Area).
As
the nurse in overall charge of a Level 1 hospital, I was not the
manager of an area, but of nursing services for the entire hospital

covering all areas.  The applicable part of the translation
table was accordingly Part F.  This is the only Part which

provides for translation of nursing managers at Level 1 and 2
hospitals.’
[26]
To this, Mr Liebenberg on
behalf of the first and second respondent, stated the following:
‘
It
is admitted that applicants were not translated to the position of
Deputy Manager Nursing at Grade PNA 8 simply because they
were not
managing a hospital consisting 90 or more beds
.’
[27]
Mr Oosthuizen, who appeared
together with Mr Joseph on behalf of the first respondent, resisted
the argument that Mr Liebenberg
had made a fatal concession that the
distinction drawn between hospitals with more or less than 90 beds
was not sourced in a clear
justification. He referred in addition to
paragraph 6 of the opposing affidavit in which the following appears:
‘
In
terms of the Director General’s aforementioned delegated powers
the latter issued a directive/circular dated 28 September
2007 which
was addressed to inter alia the Provincial Departments of Health.
’
[28]
The directive, to which Mr
Liebenberg refers to in his affidavit, is to a circular to which I
have already made reference and in
which a distinction is drawn
between Assistant Manager: Nursing (Head of Nursing Services) who
appear to operate in what are referred
to as small district hospitals
and Deputy Manager: Nursing (level 1 and 2 hospitals) who appear to
operate for a large district
and secondary hospitals.
[29]
Manifestly, first respondent is
correct that this document generated by the National Minister had to
be read together with the OSD
agreement in order to glean the
intended meaning.
[30]
Further support for the need to
look beyond the OSD agreement and the translation tables for a
complete answer to the issue of translation
is to be found in the
translation tables themselves. Three categories of translation tables
were potentially applicable to the
present dispute, namely one that
refers to Nursing Managers at levels 9 and 10, to Assistant Manager:
Nursing (area), a further
to Assistant Manager: Nursing (head of
nursing service) and a third to Deputy Manager: Nursing (level 1 and
2 hospitals). It is
clear that the reference to “area” is
to a section of a hospital and that therefore, given the activities
performed
by the individual nurses, this particular translation table
is inapplicable.
[31]
Beyond this distinction
it is difficult to determine, without more, whether the translation
of a level 9 or 10 Nursing Manager should
be translated to Assistant
Manager: Nursing (Head of Nursing Services) or to a Deputy Manager:
Nursing (level 1 and 2 hospitals).
If the interpretation offered by
the appellant is correct, it would be difficult to determine whether
the translation to Assistant
Manager: Nursing (Head of Nursing
Services) would ever be applicable. On appellant’s
construction, a nursing manager at level
9 and 10 would inevitably
have to be translated to Deputy Manager: Nursing (level 1 and 2
hospitals), notwithstanding that provision
is made for a translation
to Assistant Manager: Nursing (Head of Nursing Services) in the very
agreement upon which appellant relies.
[32]
Much reliance was placed by the
parties upon the decision in
Natal
Joint Municipal Pension Fund v Endumeni Municipality (Endumeni
)
[5]
(with regard to the proper approach to the interpretation of the OSD
document and, in particular, that the language of the document
falls
to be construed in the light of its context and the apparent purpose
to which is directed as well as the material known to
those
responsible for its production. In his judgment, Wallis JA after
examining precedent with regard to the interpretation of
legislation
or documents said at para19: “All this is consistent with the
‘emerging trend in statutory construction’.
(
Jaga
v Dönges NO and Another, Bhana v Dönges NO and Another
1950
(4) SA 653
(A) at 662G-663A ) It clearly adopts as the proper
approach to the interpretation of documents the second of the two
possible approaches
mentioned by Schreiner JA in
Jaga
v Dönges NO and Another
,
namely that from the outset one considers the context and the
language together, with neither predominating over the other. This
is
the approach that courts in South Africa should now follow, without
the need to cite authorities from an earlier era that are
not
necessarily consistent and frequently reflect an approach to
interpretation that is no longer appropriate.” See also
DexGroup v Trust Co Group
International
(Pty)
Ltd and Others
2013 (6) SA
520
(SCA) at para 16.
I remain uncertain as to whether or
how these
dicta
have significantly changed the approach to the interpretation of a
legal text. In
Coopers &
Lybrand and Others v Bryant,
[6]
Joubert JA referred expressly to the golden rule of interpretation
and stated that:
‘
the
correct approach to the application of the 'golden rule' of
interpretation after having ascertained the literal meaning of the

word or phrase in question is, broadly speaking, to have regard:
To
the context in which the word or phrase is used with its
interrelation to the contract as a whole, including the nature and
purpose of the contract’.
[33]
The difference in this approach
from that articulated in
Endumeni,
supra
is not easy to
determine. Of course, context is not a secondary consideration but is
part of the very process required to resolve
any linguistic
difficulty. The words employed and the purpose of the speaker are
inextricably linked. This follows inherently from
the very concept of
the language. In the same manner, the content of an ordinary
conversation cannot, in general, be divined from
the meaning of the
sentences employed or even with the conversationalist’s goals
in saying what they did, so the content
of a legal text cannot, in
general, simply be determined by the ordinary or technical meanings
of the sentences in the text or
indeed with the policy goals
motivating the drafting thereof. As Scott Soames has noted:
‘
the
content of a legal text is determined in essentially the same way
that the contents of other texts or linguistic performances
are, save
for complications resulting from the fact that the agent of a
legislative speech act is often not a single language user
but a
group, the purpose of the speech is not usually to contribute to the
cooperative exchange of information but to generate
behaviour
modifying stipulations, and the resulting stipulating contents are
required to fit smoothly into a complex set of existing
stipulations
generated by other actors at other times.’
See
Scott Soames “
Toward a Theory of Legal Interpretation
”
in
Analytic Philosophy in America: and other historical and
contemporary essays
(2014) 299 at 301; see also Stephen Neale
“
Interpreting Legal Texts: What is, and What is not, Special
about the Law”
in
Scott Soames (ed) Philosophical
Essays: Volume 1
(2009) at 403.
[34]
Returning to the present
dispute, the words employed in the OSD agreement read together with
the translation tables compels interpretative
work. The
interpretation, as urged upon us by appellant cannot, on any
reasonable or even rational basis, lead to the conclusion
that the
individual nurses on levels 9 or 10, should inexorably, by weight of
the wording employed in the text , be translated
to a Deputy Manager
as opposed to an Assistant Manager. That the National Minister
provided further guidance in a 2000 circular,
to which I have made
reference, to guide the behaviour contemplated by the language
employed in the legal text in question, recalls
the observations made
by Soames cited above and lends support to the interpretive approach
urged upon us by first respondent. At
the very least, as noted
already, it provides for an interpretation which gives effect to a
translation either to an Assistant
Manager: Nursing or to a Deputy
Manager: Nursing.
[35]
For these reasons, it cannot be
said that the first respondent unilaterally and impermissibly varied
the OSD agreement when it determined
for translation purposes that a
distinction was to be drawn between nursing personnel employed at
small or district level hospitals
(accommodating less than 90 beds
and those employed at large or regional hospitals accommodating 90 or
more beds).  I accept
that the distinction between less or more
than 90 beds may itself be vulnerable to some form of legal attack.
But that is not the
dispute with which this Court is seized. When the
directive issued by the National Minister on 28 September 2007 which
was designed
to facilitate the implementation of the OSD is read
together with the OSD agreement and the translation tables, the
interpretation
which was adopted by third respondent is, in my view,
the most compelling on the basis of the factual matrix which
confronted this
Court.
[36]
For these reasons, I conclude
that there is no basis by which to find either that the third
respondent committed an error in law
or acted in a manner which would
not be congruent with that of a reasonable arbitrator faced with
these set of facts. It must follow,
therefore, that the appeal is
dismissed with costs, including the costs of two counsel.
Davis
JA
Musi
and Sutherland JJA concur in the judgment of Davis JA
APPEARANCES:
FOR
THE APPELLANT:

Adv Stelzner SC and Adv Harvey
Instructed
by Chennells Albertyn Attorneys –
FOR
THE FIRST RESPONDENT:
Adv A Oosthuizen SC and Adv Brenton
Joseph
Instructed
by the State Attorneys
[1]
(2007) 28 ILJ 2405 (CC).
[2]
(2013) 34 ILJ 2795 (SCA) at para 25.
[3]
(2015) 36 ILJ 2802 (LAC) at para 32.
[4]
1992 (4) SA 69 (AD).
[5]
2012 (4) SA 593
(SCA) at para 18.
[6]
[1995] ZASCA 64
;
1995 (3) SA 761
(AD) at paras 10-11.