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[2011] ZALCJHB 38
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POPCRU v Minister of Correctional Services and Another (JR 316/2010) [2011] ZALCJHB 38; [2011] 10 BLLR 996 (LC); (2011) 32 ILJ 2541 (LC) (10 May 2011)
Reportable
Of interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: JR 316/2010
IN THE MATTER BETWEEN:
POPCRU
….....................................................................................
APPLICANT
AND
THE
MINISTER OF CORRECTIONAL SERVICES
…....
FIRST
RESPONDENT
NATIONAL
COMMISSIONER OF
CORRECTIONAL
SERVICES
…...............................
SECOND
RESPONDENT
judgment
STEENKAMP J:
Introduction
The applicant trade union, POPCRU, seeks to review and set aside a
housing policy approved by the Minister of Correctional Services
(the first respondent) in terms of s 158(1)(h) of the Labour
Relations Act.
1
The union seeks to review the policy on three grounds:
Firstly, it contends that the authority to determine the conditions
of occupation of official accommodation does not vest in
the
Minister, but in the National Commissioner; and that the Minister’s
approval of the policy was
ultra vires.
Secondly, the Minister failed to consult with trade unions over the
contents of the policy.
Thirdly, the policy is not rational.
The legislative framework
The Correctional Services Act
2
provides for a correctional system that is meant to contribute to
maintaining and protecting a just, peaceful and safe society
by
detaining all inmates in safe custody whilst ensuring their human
dignity, and by promoting the social responsibility and
human
development of all sentenced offenders.
3
To fulfil this purpose, the Department of Correctional Services was
established by s7(2) of the Public Service Act.
4
The Department consists of the National Commissioner, other
correctional officials appointed by the National Commissioner in
terms of the Correctional Services Act and other employees appointed
in terms of the Public Service Act.
5
The Department is under the control of the National Commissioner,
who must determine the fixed establishment and the distribution
of
the numerical strength of the Department, appointed correctional
officials and organise the Department into various components,
units
or groups.
In terms of the [now repealed] Correctional Services Act of 1959
6
the Minister may make regulations as to the occupation of official
quarters by correctional officials.
7
The Correctional Services Regulations were published on 31 December
1965.
8
In terms of regulation 25:
"The Commissioner may
allocate any official quarters to a correctional official for
occupation and require the correctional
official to occupy such
quarters for such period and under such conditions as may be
specially or generally determined by him."
In order to give effect to the provisions of the 1959 Act and
regulation 25 of the 1965 regulations, the National Commissioner
issued a document known as an "A-order”. Chapter 7 of the
A-order deals with housing in official departmental accommodation.
Clause 1 provides that the Act and the regulations refer to the
provision and occupation of official departmental accommodation
"...and qualify all members for functional housing irrespective
of where such personnel is employed." Clause 3 provides
that
the allocation of official quarters rests with the area manager; and
clause 4 sets out the rental tariff for official quarters.
In terms of the 1998 Act, the Minister published new regulations in
2004.
9
Regulation 31 of the 2004 regulations, under the heading "work
facilities", provides that:
"The Commissioner may
allocate official residential accommodation to a correctional
official for occupation for such period
and under such conditions as
he or she may determine."
Despite the repeal of the 1959 Act and the 1965 regulations, chapter
7 of the A order continued to exist.
On 1 December 2009 the Minister approved a housing policy in terms
of which chapter 7 of the A-order was repealed and provision
was
made for new conditions and periods of occupation of official
accommodation.
The review grounds
I have set out above the review grounds relied upon by the union. I
shall deal with each of those in turn.
However, I first need to consider the basis for the review
application and the jurisdiction of this court to hear it.
Jurisdiction
Mr
Basson
, who appeared for the union, specifically disavowed
any reliance upon section 33 of the Constitution and the provisions
of the
Promotion of Administrative Justice Act.
10
He did so on the assumption and understanding that, following the
decisions of the Constitutional Court in
Chirwa v Transnet Ltd &
others
11
and
Gcaba v Minister of Safety & Security & others
12
,
employment and labour relations issues – such as this one –
do not amount to administrative action within the meaning
of PAJA.
Instead, the union relied on s 158(1)(h) of the LRA that provides as
follows:
“
The
Labour Court may –
review any decision taken or any
act performed by the State in its capacity as employer, on such
grounds as are permissible in law.”
These grounds, Mr
Basson
submitted, included the principles
of
legality
and
rationality
.
Hoexter
13
explains that the fundamental idea underlying the principle of
legality is that the legislature and executive in every sphere
of
government are constrained by the principle that it may exercise no
power and perform a function beyond that conferred by
law. It may
only act within the powers lawfully conferred on it and the exercise
of public power is only legitimate when it is
lawful. It is the
obverse facet of the
ultra vires
doctrine and an aspect of
the rule of law.
Even though the applicant does not rely on PAJA, the legality
principle is exemplified in the post-constitutional context in
the
Pharmaceutical Manufacturers
14
judgment of the Constitutional Court. As Chaskalson P explained:
“
[50]
What would have been
ultra
vires
under
the common law by reason of a functionary exceeding a statutory power
is invalid under the Constitution, according to the
doctrine of
legality."
The court further pointed out that the exercise of public power must
be lawful; and it must not be arbitrary or irrational.
15
This principle was also enunciated by the Constitutional Court in
Fedsure Life Assurance v Greater Johannesburg Transitional
Metropolitan Council
16
.
The court pointed out that the principle that an organ of state
– in that case, a local government – may only act within
the powers lawfully conferred upon it, is a fundamental principle of
the rule of law, that the exercise of public power is only
legitimate where lawful. And there is no doubt that the common-law
principles of
ultra vires
remain under the new constitutional
order. However, they are underpinned (and supplemented where
necessary) by a constitutional
principle of legality.
In the recent case of
De Villiers v Head of Department:
Education, Western Cape Province
17
,
Van Niekerk J gave a succinct exposition of the question of
administrative action in the employment sphere in the post-
Chirwa
era.
The question in
De Villiers
was whether the conduct of the
Head of Department in failing to reinstate the employee –
after his deemed discharge in terms
of s 14(2) of the Employment of
Educators Act
18
-- constituted administrative action.
With reference to s 158(1)(h) of the LRA, Van Niekerk J considered
the test set out by Chaskalson CJ in
President of the RSA v
SARFU
19
:
“
Determining
whether an action should be characterised as the implementation of
legislation or the formulation of policy may be difficult.
It will,
as we have said, depend primarily on the nature of the power. A
series of considerations may be relevant to deciding on
which side of
the line a particular action falls. The source of the power, though
not necessarily decisive, is a relevant factor.
So, too, is the
nature of the power, its subject matter, whether it involves the
exercise of a public duty and how closely it is
related on the one
hand to policy matters, which are not administrative, and on the
other to the implementation of legislation,
which is. While the
subject-matter of a power is not relevant to determine whether
constitutional review is appropriate, it is
relevant to determine
whether the exercise of the power constitutes administrative action
for the purposes of s 33 [of the Constitution].
Difficult boundaries
may have to be drawn in deciding what should and what should not be
characterised as administrative action
for the purposes of s 33.
These will need to be drawn carefully in light of the provisions of
the Constitution and the overall
constitutional purpose of an
efficient, equitable and ethical public administration. This can best
be done on a case by case basis.”
In the employment context, as Van Niekerk J pointed out in
De
Villiers
, the question whether a power exercised constitutes
administrative action, has been complicated by the jurisdictional
debate
generated by s 157(2) of the LRA; and the related policy
driven debate on the relationship between ss 23 and 33 of the
Constitution
and whether administrative law remedies ought to be
available to public sector employees.
Van Niekerk J noted that in
Chirwa
, Ngcobo J
20
determined that the employer’s conduct in dismissing Chirwa
did not amount to administrative action; yet he accepted that
Transnet’s conduct amounted to the exercise of a ‘public
power’:
“
In my
view, what makes the power in question a public power is the fact
that it is vested in a public functionary, who is required
to
exercise the power in the public interest. When a public official
performs a function in relation to his or her duties, the
public
official exercises public power.”
These sentiments were cited with approval in
Gcaba.
Van Niekerk J
21
was at pains to point out that he did not understand the judgment in
Gcaba
to suggest that the conduct of a state employer can
never be categorized as administrative action:
“
To
read the judgment in this manner would be to elevate a single factor
in the
SARFU
test to a determinative and overriding consideration, something that
the court in
Gcaba
does not expressly do.”
I find myself in respectful agreement.
Mr
Basson
, for POPCRU, referred me to the judgment of Plasket
J in a matter concerning the same actors as those before me, viz.
POPCRU v Minister of Correctional Services & others.
22
Van Niekerk J also referred to that judgment in
De Villiers.
In
POPCRU
, Plasket J was faced with the question of whether the
decision to dismiss correctional services officers constituted
administrative
action in circumstances where the power to dismiss
was founded in statute.
23
It was argued that this function was not administrative action,
since it did not affect the public as a whole. Plasket J rejected
this submission in the following terms:
"In my view, the elusive
concept of public power is not limited to exercises of power that
impact on the public at large. Indeed,
many administrative acts do
not. The exercise of the power to arrest is a good example of
administrative action that would only
have a significant impact on
the arrestee and, perhaps, the complainant.… In these
instances what makes the power involved
a public power is the fact
that it has been vested in a public functionary who is required to
exercise it in the public interest,
and not in his or her own private
interest or at his or her own whim."
24
Van Niekerk J summarised the position as follows:
25
"As a general rule, conduct
by the state in its capacity as an employer will generally have no
implications or consequences
for other citizens, and it will
therefore not constitute administrative action. Employment related
grievances by state employees
must be dealt with in terms of the
legislation that gives effect to the right to fair labour practices,
or any applicable collective
agreements concluded in terms of that
legislation. Departures from the general rule are justified in
appropriate cases. An assessment
must be conducted on a case-by-case
basis to determine whether such a departure is warranted. The
relevant factors in this determination
(following
SARFU
) are
the source and nature of the power being exercised (this would
ordinarily require a consideration of whether the conduct was
rooted
in contract or statute; see
Cape Metropolitan Council v Metro
Inspection Services (Western Cape) CC & others
2001 (3) SA
1013
(SCA)), whether it involves the exercise of a public duty, how
closely the power is related to the implementation of legislation
(as
opposed to a policy matter) and the subject-matter of the power. I
venture to suggest that the existence of any alternative
remedies may
also be a relevant consideration – this was a matter that
clearly weighed with the court in both
Chirwa
and
Gcaba
,
who it will be recalled, were found to have had remedies available to
them under the applicable labour legislation."
Applying these considerations to the facts of the case before him,
Van Niekerk J found that the respondent’s conduct in
deciding
in terms of s 14 (2) of the Employment of Educators Act to refuse to
reinstate the applicant constituted administrative
action, and that
the Labour Court was entitled to exercise its review jurisdiction on
this basis.
But Van Niekerk J went further. Even if he was incorrect in coming
to the conclusion that the respondent’s conduct amounted
to
administrative action, he held, the respondent’s action
remained open to review under section 158(1)(h) of the LRA on
the
ground of legality. Even if the decision not to reinstate the
applicant did not constitute administrative action, he held,
this
court retains review jurisdiction on the grounds of legality (at
least), which incorporates most, if not all, of the grounds
of
review relied upon by applicant in his founding affidavit. These
would certainly require that functionaries exercise public
power in
a manner that is not irrational or arbitrary, and that they be
accountable for the manner in which that power is exercised.
I have already discussed the principle of legality above. It is on
that principle that POPCRU relies in this case. And I agree
with Van
Niekerk J that it is entitled to do so in the light of the
provisions of s 158(1)(h) of the LRA and the case law discussed
above. In those circumstances, I need not decide whether the
Minister’s approval of the housing policy constitutes
administrative
action.
Locus standi
The respondents submitted that POPCRU does not have
locus standi
in these proceedings. It is common cause that the housing policy
has, to date, only been implemented in respect of senior management
service (SMS) members. POPCRU does not act on behalf of those
members, but in respect of its members in job levels 2 to 12. The
housing policy will only be implemented in respect of those members
once the union has been consulted. Mr
Semenya
, for the
respondents, therefore, submitted that the matter is also not ripe
for hearing in respect of those members.
I address the question of collective bargaining hereunder. The
union’s argument is that the respondents had to engage in
collective bargaining with it over the determination of the policy,
and not only its implementation.
In terms of s 200(1) (c) of the LRA:
“
A
registered trade union… may act in any one or more of the
following capacities in any dispute to which any of its members
is a
party –
in its own interest;
on behalf of any of its
members;
in the interests of any of
its members."
In the present instance, the union purports to be acting in the
interests of its members in job categories 2 to 12. I can see
nothing wrong with that approach. As Sutherland AJ explained in
Manyele & others v Maizecor (Pty) Ltd & another,
26
the reference to a trade union acting "in the interests of any
of its members" refers to situations where "intrinsically
collective interests" are involved. That is exactly what the
applicant union is doing in this case. I hold that it does
have
locus standi
.
Ultra vires?
Mr
Semenya
, for the Department, argued that the approval of
the housing policy was, as the subject matter suggests, a matter of
policy and
therefore not administrative action. And if the Minister
is entitled to make policy – which is not a reviewable action
– he axiomatically acted
intra vires.
In this regard, Mr
Semenya
referred to s 85(2)(b) of the
Constitution.
27
He also pointed to s 1 of PAJA, that expressly excludes executive
powers in terms of s 85(2)(b) of the Constitution from the
definition of “administrative action”. He argued that
the Minister, in approving the housing policy, was developing
and
implementing national policy as envisaged by s 85(2)(b) and that it
was, therefore,
intra vires
and not reviewable.
But, as I have set out above, the applicant union specifically
relies on a legality review in terms of s 158(1)(h) of the LRA.
It
does not rely on PAJA. Therefore, I need not decide whether the
Minister’s action constitutes administrative action
and if
PAJA applies.
Failure to consult
The next ground of review is that the Minister and the Department
failed to consult with labour generally, and POPCRU in particular,
about the contents of the housing policy. This, the applicant
submits, is a reviewable irregularity on the ground of legality.
POPCRU initially argued in its pleadings and its heads of argument
that the conditions and period attached to the occupation
of
official accommodation is not simply a “work practice”,
but forms part of the service conditions of correctional
officials.
In oral argument, though, Mr
Basson
conceded that the
provision and allocation of official accommodation to correctional
officials is a “work practice”.
He nevertheless
maintained that it remained subject to collective bargaining.
The Department of Correctional Services forms part of the public
service established by s 197 of the Constitution.
28
Correctional officials are appointed and remunerated in accordance
with the Correctional Services Act, the LRA and the Public
Service
Act.
29
The relationship between the Department as employer and the
officials in its service is regulated by the provisions of the LRA
and the Public Service Act.
30
The Minister for Public Service and Administration issued the Public
Service Regulations under s 41 of the Public Service Act
31
on 5 January 2001.
32
Chapter 1, Part V, regulation E provides as follows:
“
E
Service
benefits, compensatory practices and work facility practices
E.1 The Minister shall determine
service benefits, compensatory practices, work facility practices and
allowances for employees
through the collective bargaining process
or, for employees who fall outside the Labour Relations Act,
directly.
E.2 The Minister may make a
determination regarding-
(a)
special daily
allowances for visits abroad by employees; and
(b)
the application of a
service benefit, compensatory practice, work facility practice or
allowance.
E.3 Subject to the terms of a
relevant collective agreement, an executing authority may provide the
cash equivalent of benefits
received by permanent employees to
employees on fixed-term contracts, other than heads of department.”
The scope of those regulations is spelt out in Chapter 1 part I:
“
D
Scope
of application
These Regulations apply-
(a)
to all persons
employed, and to institutions governed, in terms of the Act; and
(b)
subject to the
provisions of the Act, to persons employed in the Services, the
Agency or state educational institutions, only so
far as they are not
contrary to the laws governing their employment.”
“
The Services” is not defined. But a
“member of the services” is defined in the Public
Service Act to include
a member of the Department of Correctional
Services appointed in terms of the
Correctional Services Act, 1998
.
33
It is clear from
Part V
Regulation E.1 of the Public Services
Regulations of 2001, quoted above, that the Minister may only
determine “service
benefits” as well as “work
facility practices” through the collective bargaining process.
Both parties appear to accept that the provision of housing in terms
of the housing policy is, at least, a “work facility
practice”. It is further common cause that the respondents
have not consulted labour generally, and POPCRU specifically,
on the
content
of the new housing policy, even though the
respondents maintain that they will consult labour over the
implementation
of the policy.
As set out above, the Public Service Regulations do apply to
correctional service officials. They are members of “the
Services” as set out in s 1 of the Public Service Act, where a
“member of the services” is defined to mean a
member of
–
“
(c)
the Department of Correctional Services appointed, or deemed to have
been appointed, in terms of the Correctional Services Act,
1998 (Act
No 111 of 1998).”
Section 3(5)(h)
of the
Correctional Services Act provides
as
follows:
"The Department is under
the control of the National Commissioner, who must, without
derogating from the generality of subsection
(2), enter into
collective agreements as provided for in the Labour Relations Act
pertaining to matters within his or her authority."
When the Minister approved the new housing policy, she determined a
new "work facility practice". All of the parties
are bound
by the Public Service regulations. In terms of those regulations,
the Minister could not validly do so unilaterally.
The Minister and
the National Commissioner had to engage in a collective bargaining
process with labour. That has not happened.
That ground of review
succeeds.
Rationality
The third ground of review is that the Minister's decision to
approve the housing policy without providing for the rental tariffs
to be applied in respect of officials occupying official
accommodation, and further to limit the period of occupation to
specific
periods without consulting the officials currently
occupying the housing, is irrational and therefore reviewable.
Following
Pharmaceutical Manufacturers
34
the exercise of all public power is subject to review on the basis
of irrationality.
Given my finding on the ground of legality, though, it is
unnecessary to consider this ground of review.
Conclusion
I find that POPCRU has
locus standi
to bring this application
and that this court does have jurisdiction.
I further find that the respondents were obliged to enter into a
collective bargaining process with the applicant union in
determining the housing policy. This they failed to do. The review
application succeeds on that ground on the basis of legality
and in
terms of s 158(1)(h) of the LRA.
Costs
The parties before me will have to enter into a collective
bargaining process pursuant to this judgment. An adverse costs order
may have a chilling effect on that process. In law and fairness, no
costs order should follow.
Order
The housing policy approved by the first respondent on 1 December
2009 is reviewed and set aside.
There is no order as to costs.
_______________________
STEENKAMP J
Date of hearing:
19 April 2011
Date of judgment:
10 May 2011
For the applicant:
Adv JL Basson
Instructed by Grosskopf attorneys
For the respondents:
Adv IAM Semenya SC
Adv T Mkhwanazi
(Heads of argument drafted by Adv R Sutherland SC)
Instructed
by The State Attorney
1
Act
66 of 1995 (“the LRA”).
2
Act
111 of 1998.
3
s
2
of the
Correctional Services Act.
4
Public
Service Act, 1994 (promulgated under Proclamation 103 of 1994).
5
s
3(4)
of the
Correctional Services Act.
6
Act
8 of 1959 (“the 1959 Act”) [prior to repeal by Act 111
of 1998].
7
s
94(1)(b)(ii) of the
1959 Act.
8
GN
R 2080 of 31 December 1965.
9
Published
under Government Notice R914 of 30 July 2004.
10
Act
3 of 2000 (PAJA).
11
(2008)
29
ILJ
73
(CC).
12
(2009)
30
ILJ
2623
(CC).
13
Cora
Hoexter,
Administrative Law in South
Africa
(2007) at 116-7.
14
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa and others
[2000] ZACC 1
;
2000
(2) SA 674
(CC).
15
Paras
[51], [85] and [90]. See also
Minister
of Correctional Services & others v Kwakwa and another
2002
(4) SA 455
(SCA);
[2002] 3 All SA 242
(A) paras [35] – [36].
16
[1998] ZACC 17
;
1999
(1) SA 374
(CC) paras [56] – [59].
17
(2010)
31
ILJ
1377
(LC).
18
Act
76 of 1998.
19
2000
(1) SA 1
(CC) para [134], cited with approval by Ngcobo J in
Chirwa
(supra) at 414G-415A.
20
As
he then was.
21
At
para [15] of
De Villiers.
22
2008
(3) SA 91
(E); (2006) 27
ILJ
555 (E).
23
Correctional
Services Act, 1998
,
s 3(5)(g).
24
115
C-E.
25
De
Villiers
para [19].
26
[2002]
10 BLLR 972
(LC).
27
Constitution
of the Republic of South Africa, 1996.
28
s
3(1)
of the
Correctional Services Act.
29
s
3(5)(g)
of the
Correctional Services Act.
30
s
96(2) of the
Correctional Services Act.
31
Proclamation
103 of 1994.
32
GN
R1 in
Government Gazette
21951 of 5 January 2001.
33
Public
Service Act s 1.
34
Pharmaceutical
Manufacturers of SA: In re ex parte President of the RSA
[2000] ZACC 1
;
2000
(2) SA 674
(CC).