South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007] ZACC 10; 2007 (5) SA 400 (CC); 2007 (8) BCLR 863 (CC) ; [2007] 9 BLLR 785 (CC) ; (2007) 28 ILJ 1909 (CC) (30 May 2007)

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[2007] ZACC 10
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South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007] ZACC 10; 2007 (5) SA 400 (CC); 2007 (8) BCLR 863 (CC) ; [2007] 9 BLLR 785 (CC) ; (2007) 28 ILJ 1909 (CC) (30 May 2007)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 65/06
[2007] ZACC 10
SOUTH
AFRICAN NATIONAL DEFENCE UNION Applicant
versus
MINISTER
OF DEFENCE First Respondent
SECRETARY
OF DEFENCE Second Respondent
CHIEF OF
THE SOUTH AFRICAN NATIONAL
DEFENCE
FORCE Third Respondent
P MOLOTO,
ACTING CHAIRPERSON
MILITARY
BARGAINING COUNCIL Fourth Respondent
Heard
on : 1 March 2007
Decided
on : 30 May 2007
JUDGMENT
O’REGAN
J:
This
case concerns disputes regarding collective bargaining that have
arisen between the South African National Defence Force
(the SANDF)
and the South African National Defence Union (SANDU), the union
that represents between a third and a quarter of
all the members of
the SANDF. It has its origin in five separate applications, each
launched by SANDU in the High Court. Those
applications were in
turn consolidated into three hearings in respect of which three
judgments by different judges of the High
Court were handed down.
All three were appealed to the Supreme Court of Appeal which handed
down two judgments in respect of
which SANDU now seeks leave to
appeal to this Court.
Background
Before turning to the facts of the applications before us, it will
be useful to describe briefly the background to the dispute.
The
SANDF includes the South African army, navy and air force. The
Permanent Force of the SANDF consists of full-time military
personnel. Until 1999 there was a statutory prohibition on members
of the Permanent Force being members of trade unions.
1
That prohibition was declared unconstitutional on 26 May 1999 by
this Court in
South African National Defence Union v Minister of
Defence and Another
(the
1999
SANDU
decision)
.
2
The
Court held that the prohibition was inconsistent with section 23 of
the Constitution which provides –
“
(1) Everyone has the right
to fair labour practices.
(2) Every worker has the right
–
(a) to form and join a trade
union;
(b) to participate in the
activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the
right –
(a) to form and join an
employers’ organisation; and
(b) to participate in the
activities and programmes of an employers’ organisation.
(4) Every trade union and every
employers’ organisation has the right –
(a) to determine its own
administration, programmes and activities;
(b) to organise; and
(c) to form and join a
federation.
(5) Every trade union,
employers’ organisation and employer has the right to engage in
collective bargaining. National legislation
may be enacted to
regulate collective bargaining. To the extent that the legislation
may limit a right in this Chapter, the limitation
must comply with
section 36(1).
(6) National legislation may
recognise union security arrangements contained in collective
agreements. To the extent that the legislation
may limit a right in
this Chapter, the limitation must comply with section 36(1).”
The
order of constitutional invalidity made by the Court was suspended
for three months to afford the Minister of Defence (the
Minister)
an opportunity to make regulations to provide for labour relations
as a result of the lifting of the ban on trade union
membership.
3
Section 87(1)(rB) of the Defence Act, 44 of 1957 (the 1957 Act),
empowered the Minister to issue regulations –
“
relating to the rights of
members of the Permanent Force in connection with all matters
concerning labour relations between them
and the State as their
employer (including conditions of service, salaries and other
benefits) and the administration and management
of such matters,
including the settlement of disputes and the establishment of
mechanisms for such purpose.”
On
20 August 1999 following on the 1999
SANDU
decision, the
Minister issued regulations to regulate labour relations in the
SANDF, which now constitute chapter XX of the General
Regulations
of the South African National Defence Force and the Reserve (the
regulations).
4
The regulations provide for the registration of unions that have a
proven membership of 5 000 SANDF members at the time
of their
application for registration.
5
It should be noted that since the regulations were promulgated,
the 1957 Act has been repealed and replaced with the
Defence Act,
42 of 2002
(the 2002 Act), but the relevant regulations were
expressly preserved.
6
Once a union has a proven membership of 15 000 SANDF members it
may apply for membership to the Military Bargaining Council
(the
MBC).
7
A key function of the MBC is the conclusion of collective
agreements between trade unions and the Department of Defence.
8
The
Constitution of the MBC was adopted on 13 March 2001 by the
Department of Defence and SANDU. The first objective of the MBC
is, in accordance with the provisions of the
Defence Act,
regulations
and the Constitution of the MBC, to –
“
negotiate and bargain
collectively to reach agreement on matters of mutual interest
between the employer and members represented
by admitted Military
Trade Unions (MTU) in the Council, and to prevent and resolve
disputes between the employer and such Military
Trade Unions by
means of negotiation, consultation or otherwise, including, but not
limited to, the utilisation of procedures for
dealing with
disputes”.
9
The
parties to the MBC are the Department of Defence “as employer”
and those military trade unions admitted to the MBC in terms
of the
regulations.
10
Clause 20 of the Constitution of the MBC provides for a procedure
according to which disputes between the employer – the Department
of Defence – and unions shall be resolved. Once a dispute is
declared, the secretary of the MBC shall convene a meeting within
five working days to seek to resolve the dispute. If the dispute
remains unresolved, the dispute may be referred to the Military
Arbitration Board (the MAB) for resolution.
The
MAB is also established in terms of chapter XX of the regulations.
11
Regulation 73 provides that it shall be composed of five
independent members appointed by the Minister (a matter to which I
shall return). Regulation 75 provides that arbitrations are to be
dealt with in terms of the regulations and the
Arbitration Act, 42
of 1965
.
SANDU,
having reached the appropriate threshold of representation, was
registered as a trade union in terms of the regulations
12
on 30 June 2000 and admitted to the MBC during October 2000. At
the time that the applications were launched in the High Court,
it
was one of only two registered military trade unions
13
and the only union admitted to the MBC. According to the
Department of Defence, in October 2001, SANDU represented more than
17 000 SANDF members out of a total SANDF membership of just over
60 000, accordingly just under 29% of all members.
14
Once
SANDU had been registered as a military trade union, but before it
had been admitted to the MBC, indeed before the MBC was
established, it wrote to the SANDF on 24 July 2000 as follows –
“
Until the formal
establishment of the Military Bargaining Council, for the interim,
the status quo, as on 30 June 2000, should be
maintained regarding
any and all issues having an effect on the rights and/or interests
of our members. Alternatively arrangements
should be made between
SANDU and the Department of Defence/SANDF whereby procedures and
channels of communication, between the
parties, need to be
established in order to consult and/or negotiate on any and all
issues effecting our members’ rights and/or
interests. . . .
SANDU is aware of the fact that
the Department of Defence/SANDF is in the process of unilaterally
revising existing personnel policies
and/or unilaterally compiling
new personnel related policies which are likely to impact negatively
on the rights and/or interests
of our members once unilaterally
implemented.
SANDU therefore places on
record that the interim period between 30 June 2000 and the
establishment of the Military Bargaining Council
should not be
regarded . . . as an opportunity to proceed with these actions . . .
without consulting and/or negotiating such actions/issues
with SANDU
first. . . .
The Department of Defence/SANDF
is hereby requested to cease all and/or any aforementioned
unilateral actions and to co-operate
with SANDU in establishing
interim procedures/structures to deal with these matters, ensuring
healthy labour relations within the
SANDF.”
On
18 August 2000, the following response was sent to SANDU by the
Secretary for Defence –
“
2. The Department of Defence
is well aware of the fact that your registration affords your
organisation certain organisational rights.
As far as collective
bargaining rights are concerned, your organisation will be consulted
on matters of mutual interest, but bargaining
can only commence once
you are admitted to the Military Bargaining Council (MBC).
. . .
4. You are furthermore ensured
that your organisation, as a registered military trade union, will
be consulted on all matters that
may affect the rights or interests
of your members.”
On
the same day, the Secretary of Defence wrote to SANDU in respect of
the formulation of policy regarding retrenchment packages
as
follows â€“
“
2. The Department of Defence
is obliged by law to consult with registered military trade unions
on all policy matters that would
affect their members. Therefore
the department will abide by these prescripts and keep your
organisation on board as far as these
matters are concerned. The
formulation of policy is however a managerial responsibility but
will nonetheless be consulted with
all relevant stakeholders.
3. The assurance is once again
given that as soon as the relevant draft document is ready, it will
be distributed to your organisation
for input.”
The
MBC met for the first time in October 2000. Regular meetings began
in February 2001. From February to August, approximately
thirteen
meetings of the MBC were held. However, although meetings were
held regularly, the MBC proved unable to resolve issues
placed
before it. By September 2001, more than 90 issues were on its
agenda of which only one had been resolved. One of the
issues
tabled early on in the life of the MBC was SANDU’s
dissatisfaction with certain of the regulations contained in
chapter
XX. SANDU considered that certain regulations were
unconstitutional and required reconsideration. This issue was one
of those
not resolved by the MBC.
The
meeting of the MBC planned for 4 September 2001 was postponed on 31
August by the Department of Defence to 11 September, and
on 10
September that meeting was again postponed to 20 September 2001.
The meeting scheduled for 20 September was again called
off by the
Department of Defence on 14 September.
It
is clear from the record that both the Department of Defence and
SANDU were finding the process of bargaining with one another
at
the MBC both frustrating and painful. The respondents point to a
variety of actions by SANDU which they allege constituted
bad faith
bargaining. In particular, the respondents refer to a series of
articles published in the media during September and
October 2001
criticising the manner in which the SANDF handled its internal
labour relations. They also refer to a leaflet campaign
in which
the Minister and senior members of the SANDF were lampooned. SANDU
on the other hand was angered by what it saw as
the SANDF’s
failure to address its concerns in any material fashion.
The
frustration caused by the failure to resolve issues in the MBC as
well as the postponement of the meetings of the MBC led
SANDU to
write a letter to the SANDF on 17 September 2001 as follows –
“
SANDU has, during the past
year of negotiations with the Department, been frustrated by the
Department of Defence in effective collective
bargaining. Major
stumbling blocks preventing various important issues from being
addressed properly, are (amongst others):
(a) A total lack of the
necessary infrastructure in the SANDF/Department of Defence to
respond effectively to legitimate problems/concerns
raised by SANDU.
To this the Department of Defence has admitted in the MBC;
(b) Actions and/or omissions on
the part of the Department of Defence, as negotiating party in the
MBC, which casts serious doubt
over the credibility of the Employer
and its commitment to respecting the rights and interests of
soldiers as a matter of urgency;
and
(c) Disregard by the Department
of Defence/SANDF for the independence and constitutional authority
of the MBC.
Unfortunately these factors had
come to a point where the general feeling in SANDU membership is
that SANDU and its members will
no longer be fooled around by the
Employer. We have on various occasions warned the Employer that
labour unrest could become the
result of the Employer’s disregard
for SANDU and its members’ rights and interests, provisions of the
General Regulations,
MBC proceedings and the MBC Constitution.
Due to the many frustrations
encountered between SANDU and the Employer, SANDU is strongly
pressured by its members to embark into
national labour unrest in
order to make known to management, the public, Parliament and
Government the treatment SANDU and its
members are receiving from
the Employer.
In our last effort to avoid
SANDU and its members to embark on national labour unrest, we now
call on your office to urgently meet
with SANDU in order to try and
defuse the tension between this union and the Employer.”
The
Minister responded to SANDU’s letter on 19 September 2001. He
drew attention to the fact that industrial action by SANDU’s
members would be unlawful in terms of the 1957 Act and the
regulations, and warned SANDU that acts of labour unrest would be
treated as mutiny. He called upon SANDU to withdraw its threat of
labour unrest unconditionally and stated that negotiations
with
SANDU at the MBC would be suspended until the threat of labour
unrest was withdrawn. He added, however, that negotiations
“may”
be resumed “with immediate effect” once the threat of
industrial action was withdrawn.
On
4 October 2001, the SANDF introduced a new staffing policy without
prior consultation or negotiation with SANDU. Indeed, SANDU
only
became aware of the new policy on 15 October 2001 when the policy
document was handed to it by one of its members. The
SANDF does
not dispute that the policy was introduced unilaterally and assert
that they were entitled to do so, despite their
undertakings to the
contrary in their letters of 18 August 2000 referred to above. The
new policy is an interim policy to replace
a staffing policy that
had, according to the SANDF, been causing difficulties. According
to the interim policy, until a new
policy had been developed,
transfers, secondments, and placements would be decided by
commanders and line managers with the assistance
of supervisors in
accordance with the guidelines “as stipulated in the Defence
Review and the Constitution of the RSA.”
As a result of the
implementation of the interim policy, staffing procedures that were
already underway in terms of the previous
staffing policy would be
terminated save for some exceptions.
In
the light of the unilateral introduction of the new policy and in
consequence of the Minister’s letter withdrawing from collective
bargaining, SANDU’s attorneys responded to the Minister’s
letter on 18 October 2001 as follows –
“
Our client hereby gives an
unequivocal undertaking to your client that it will neither embark
upon nor encourage its members to
embark upon any labour action that
conflicts with the law (by which is meant the
Defence Act and
the
Regulations promulgated thereunder). This undertaking is given
against the backdrop of statements earlier made by our client
to the
effect that it at no time intended to utter any threat suggestive of
the intent to either embark upon or encourage such
labour action.
Our client’s attitude is now as it has always been: i.e. that it
complies with and operates within the ambit
of the law. In making
this point, our client takes note of the fact, that your client may
have interpreted the remarks in earlier
correspondence as
constituting a threat. . . .
We request that your client
immediately withdraw his instructions as contained in his letter
dated 19 September 2001 and instruct
the employer’s negotiators to
resume negotiations with our client without any delay.”
The
letter requested that, pending a resumption of negotiations, there
be no unilateral implementation of the new staffing policy.
On the
same day, SANDU’s attorneys also wrote to suggest that a trained
third party be appointed to assist SANDU and the SANDF
to resolve
their differences. The letter proposed either a full
relationship-by-objective process or mediation. A
relationship-by-objective
process is a lengthy industrial-relations
process in terms of which an employer and union meet to discuss and
analyse all the
aspects of their relationship with one another.
The purpose of such a process is to improve the industrial
relations environment
and foster a constructive working
relationship between an employer and a union.
15
Despite
these letters from SANDU’s attorneys and several that followed
repeating the undertaking not to participate in industrial
action,
the Minister did not give instructions for collective bargaining to
be resumed immediately. On 31 October 2001, the
State Attorney on
behalf of the Minister wrote to SANDU indicating that he would be
willing to revoke his instruction to suspend
negotiations on the
following conditions –
“
3.1 SANDU must commit itself
to a process of mediation before commencement of negotiations.
3.2 The parties must negotiate
an agreement and reach common ground on at least the ‘
manner
and form
’ of collective bargaining within the existing
structures created for that process, so that proper and fruitful
negotiations can
take place without the conflict and complications
that are generated by the present style of negotiations. This
agreement should
also cater for matters such as the procedure for
the scheduling of meetings, the procedure for the submission and
acceptance of
topics for the agenda, rules of conduct during
negotiations, and the taking of minutes or the recording of
proceedings.” (Emphasis
in original.)
In
relation to the implementation of existing policies and the
unilateral implementation of the new staffing policy pending the
satisfactory conclusion of the mediation process, the State
Attorney continued as follows –
“
6. As far as your request
for an undertaking is concerned, my instructions are that:
6.1 in the absence of a
collective agreement affecting or amending any
existing
policy or instruction, concerning a matter subject to collective
bargaining in terms of the relevant regulations, the Department
of
Defence is entitled (and also constitutionally obliged) to apply
and/or implement such a policy or instruction; and
6.2 if circumstances call for a
unilateral implementation of
new
policies or instructions, or
an amendment of existing ones, the Department of Defence is obliged
to go ahead and do so in the public
interest and in the execution of
its constitutional obligations, obviously subject to the right of an
individual prejudiced thereby
to approach a court of law in the
event of an infringement of his or her rights.” (Emphasis in
original.)
SANDU
agreed to participate in the mediation process, but once again
reiterated its demand that the new staffing policy should
not be
implemented until negotiations at the MBC had resumed. Shortly
after this exchange of correspondence, but before any
mediation
took place, the first of the applications which relate to this
appeal was launched by SANDU. One further fact needs
to be
recorded. In May 2003, more than eighteen months after the first
of the applications was launched by SANDU, the SANDF
sought to
implement a transformation and restructuring policy without
negotiation with SANDU. This resulted in further litigation
as I
shall explain in due course.
This
background would not be complete without recording the challenge of
transformation that has faced the SANDF since 1994.
The SANDF has
drawn together former members of the South African Defence Force,
former members of the military established in
the Transkei, Ciskei,
Bophuthatswana and Venda,
16
as well as members of the armed wings of the liberation movements,
Umkhonto weSizwe and the Azanian Peoples Liberation Army.
Old
enmities have been set aside in order to establish a new defence
force that is committed to defending our country and upholding
our
Constitution. According to the Constitution, the primary object of
the SANDF is –
“
to defend and protect the
Republic, its territorial integrity and its people in accordance
with the Constitution and the principles
of international law
regulating the use of force.”
17
The
importance of this constitutional object cannot be denied. Nor can
we overlook the inherent difficulties of binding together
soldiers
from different armies with different institutional cultures and
values into one institution tasked with an important
constitutional
mandate. It is necessary now to turn to the issues raised in each
of the applications.
The
five applications
As
stated at the outset, this case originated in five applications
launched in the High Court by SANDU. Two of these were
consolidated
and heard by Van der Westhuizen J; a further two were
consolidated and heard by Smit J; and the remaining application was
heard
by Bertelsmann J. For ease of reference, as was done in the
Supreme Court of Appeal, I shall refer to the applications heard by
Van der Westhuizen J as
SANDU I
; those heard by Smit J as
SANDU II
; and the remaining application heard by Bertelsmann
J as
SANDU III
.
The
first applicant in all three matters is SANDU. The other
applicants in the individual applications are mentioned below when
the applications are individually discussed. Similarly, in each
case the first respondent is the Minister; the second respondent
is
the Secretary of Defence; and the third respondent is the Chief of
the SANDF. Other respondents in the individual applications
are
identified below. At this stage, too, it would be helpful to note
that the employer of those employed in the SANDF is the
Department
of Defence.
SANDU
I
SANDU
I
had its genesis in two applications brought in the High
Court. The first
18
concerned the introduction of a new staffing policy described in
paragraph above. This application became moot between the
parties
even before the hearing in the High Court as the disputed staffing
policy was withdrawn by the Department of Defence.
The only issue
that remained for consideration, therefore, was the costs incurred
in that application, which the High Court
ordered to follow the
result of the second of the two applications in the matter which
came to be known as
SANDU I
.
19
The
second application
20
sought an order declaring that refusal by the SANDF to negotiate
with SANDU, save subject to the preconditions imposed by the
Minister in a letter dated 31 October 2001, was unlawful.
21
As described above, the preconditions laid down were that SANDU
must agree to mediation; that SANDU must acknowledge that the
SANDF
is entitled unilaterally to amend its existing policy or implement
new policy when it perceives this to be in the public
interest; and
that both the SANDF and SANDU must agree to the manner and form of
collective bargaining within the existing structures
for the
process.
The
SANDF’s answer to the application was first to assert that it
bore no legal duty to bargain with SANDU at all; and secondly,
that
even if it did bear such a duty, it was entitled to withdraw from
collective bargaining in the circumstances of the case
until its
preconditions were met.
The
High Court dismissed the application on 27 September 2002. Van der
Westhuizen J held that section 23(5) of the Constitution
does not
impose an obligation upon an employer to bargain collectively with
a trade union. He also found that there was no legislative
duty
which required the SANDF to bargain with SANDU. Having reached
this conclusion, however, Van der Westhuizen J continued
by
reasoning as follows –
“
Furthermore, I am not of the
view that my viewpoint that the Constitution and the relevant
legislation do not impose a duty to bargain
collectively, can be
construed to mean that participation in a process of negotiation and
bargaining by the employer is so entirely
voluntary that the
employer could, for no reason at all, capriciously, at its mere
whim, or simply because it would be inconvenient
or difficult,
decide not to negotiate.”
22
Van
der Westhuizen J then considered whether it was unreasonable for
the SANDF to have withdrawn from bargaining as it had done
and to
have refused to return until its preconditions were met. He
concluded as follows –
“
Therefore, I am of the view
that, even if the respondents are legally, morally, or otherwise in
principle obliged to participate
in collective bargaining in the
MBC, the actions of the first respondent to suspend negotiations and
to set preconditions for further
participation are not unreasonable
under the circumstances of this case, or at least not so
unreasonable as to justify interference
by a court of law to the
extent of ordering the respondent to return to the negotiating
table.”
23
SANDU
then sought leave to appeal to the Supreme Court of Appeal.
SANDU
II
Both
applications that underpin
SANDU II
were launched in July
2002.
24
The relief sought in both applications was a declaration of
invalidity in respect of certain of the regulations forming part
of
chapter XX of the regulations, mentioned earlier. The following
regulations were challenged:
(a) regulations 3(c) and 36 to the extent that they derogate from
the right of a military trade union to negotiate over all matters
of
mutual interest between it and its members on the one hand and the
Department of Defence on the other;
(b) regulation
8 insofar as it imposes limits on protest action by members of the
SANDF;
(c) regulation
13(a) in that it prohibits military trade unions from associating or
affiliating with trade unions and federations
that are not
registered in terms of the regulations;
(d) regulation
19 inasmuch as it prohibits military trade unions from negotiating
for a closed shop or agency shop agreement;
(e) regulations
25(a) and (b) and regulation 27, to the extent that they prohibit
military trade union representatives from representing
their members
in respect of grievance and disciplinary proceedings, but only
permit them to “assist” their members;
(f) regulation
37 to the extent that it imposes a complete ban on the activities of
a military trade union during military training
and operations;
(g) regulation
41 insofar as it permits the Minister to appoint the Registrar of
Military Trade Unions;
(h) regulation
53 insofar as it gives the Registrar of Military Trade Unions the
power to withdraw the registration of a registered
military trade
union without prior notice or reasonable notice; and
(i) regulation
73 to the extent that it empowers the Minister to appoint the
members of the MAB.
In
addition, in the second case, SANDU also sought a declaration that
the SANDF was under a duty to bargain with it at the MBC on
the
regulations and all matters of mutual interest.
Both
applications in
SANDU II
were heard together by Smit J in
the High Court. In his judgment,
25
Smit J disagreed with Van der Westhuizen J and held that section
23(5) affords a union a right to engage in collective bargaining
with an employer as well as imposing a correlative duty on an
employer to bargain with that union.
26
Smit J held that the regulations also impose a duty to bargain on
the SANDF. He based this conclusion on the language of regulation
3(c) read with regulation 36.
27
In respect of the duty to bargain, Smit J accordingly made the
following order –
“
It is declared that the
first respondent is under a duty to negotiate with the first
applicant within the Military Bargaining Council
and otherwise on
all matters of mutual interest (including the contents of, and
amendments to, the General Regulations promulgated
or to be
promulgated in terms of the
Defence Act) that
might arise between
the first respondent in his official capacity as the employer on the
one hand, and the first applicant and/or
its members on the other.”
28
He
also issued a mandamus directing the Minister to negotiate with
SANDU within the MBC.
Smit
J also declared the challenged regulations to be inconsistent with
the Constitution and invalid.
29
The SANDF appealed the order made by Smit J to the Supreme Court
of Appeal.
SANDU
III
This
application was launched in the High Court on 10 June 2003.
30
In it, SANDU sought an interdict restraining the SANDF from
implementing and proceeding with a transformation and restructuring
policy
31
which had been introduced on 21 May 2003 without consultation or
negotiation with SANDU. It is common cause that this policy
was
based on a policy that had been adopted by the Public Service
Coordinating Bargaining Council
32
after lengthy negotiations between the public service unions and
the State as the employer party to that Bargaining Council.
When
the Department of Defence introduced the policy, SANDU requested
the Department to bargain with it on the issue of the
policy. The
Department refused. SANDU then declared a dispute in the MBC, but
the Department again persisted in its refusal
to negotiate. SANDU
then referred the dispute to arbitration.
While
the arbitration was pending, the SANDF indicated that it intended
to implement the policy immediately. Accordingly SANDU
launched an
application for an interdict to prevent the SANDF from implementing
the policy until the arbitration process was
complete.
33
Once
again the SANDF argued that it had no obligation to bargain with
SANDU over matters of mutual interest and that it was entitled
to
implement policy unilaterally in the public interest. Bertelsmann
J who heard the application in the High Court agreed with
Smit J
that the SANDF did have a duty to bargain with SANDU in the
circumstances of the case. Accordingly the court issued an
order
restraining the Department from implementing the policy pending the
finalisation of the dispute concerning the implementation
of the
policy by the MAB. In addition, the court made an order
interdicting the Department –
“
from continuing with any
implementation of any aspect which forms the subject of a dispute
which had already been declared in terms
of the dispute resolution
procedures as provided for in . . . the aforesaid regulations and
the MBC Constitution and referred for
arbitration to the Military
Arbitration Board pending resolution of such dispute either by means
of conciliation or arbitration
as prescribed, and in which dispute
the issue of collective bargaining is raised.”
This
order, too, was appealed to the Supreme Court of Appeal. During
argument, this Court was informed that the subject matter
of
SANDU
III
, the unilateral implementation of the transformation
policy, is now moot between the parties, as the SANDF has withdrawn
the
policy.
Proceedings
before the Supreme Court of Appeal
The
appeals from the three judgments in
SANDU I
,
SANDU II
and
SANDU III
were heard together by the Supreme Court of
Appeal because of one issue that was common to all – the question
of whether the
SANDF has a legal duty flowing from the Constitution
or any other source to bargain with SANDU.
34
Two unanimous judgments were handed down by that court: one
dealing with the appeal against the orders in
SANDU I
and
SANDU III
and the issue of the duty to bargain by Conradie
JA and the other dealing with the constitutionality of the
individual regulations
– the issue raised in
SANDU II
–
by Nugent JA.
Conradie
JA, after a consideration of both the provisions of the
Constitution and international labour law, concluded that –
“
the Constitution, while
recognising and protecting the central role of collective bargaining
in our labour dispensation, does not
impose on employers or
employees a judicially enforceable duty to bargain. It does not
contemplate that, where the right to strike
is removed or
restricted, but is replaced by another adequate mechanism, a duty to
bargain arises.”
35
He
also rejected SANDU’s alternative arguments that either chapter XX
of the regulations or the Constitution of the MBC established
a
judicially enforceable duty to bargain. He also rejected SANDU’s
argument that the conduct of the SANDF during the consultations
around the transformation policy constituted an unfair labour
practice.
In
his judgment Nugent JA
36
dealt with the appeals against the orders of constitutional
invalidity made by the High Court in respect of the regulations.

He upheld all the appeals save for the appeal in respect of
regulation 19 which provides that military trade unions shall not
have the right to negotiate a closed shop or agency shop with the
employer.
SANDU
seeks leave to appeal against both judgments of the Supreme Court
of Appeal to this Court. It limits its appeal in relation
to the
constitutionality of the regulations to regulations 8(b), 13(a),
25(a) and (b), 27, 37 and 73. The Minister does not
seek leave to
appeal against the order of the Supreme Court of Appeal in respect
of regulation 19.
Issues
in this Court
It
is important to identify the issues for determination in this Court
carefully. The case involves appeals arising from
SANDU I
,
SANDU II
and
SANDU III
and must therefore depend on
the relief sought and the facts established in those cases. In my
view, the applicant sought the
following relief in
SANDU I
and continues to seek that relief in this Court: an order that the
SANDF was legally not entitled to withdraw unilaterally from
the
MBC and impose preconditions upon SANDU for its return. In
SANDU
II
, as well as a challenge to the constitutionality of certain
of the regulations promulgated in chapter XX, SANDU sought an order
that the SANDF was obliged to bargain with it on the content of the
regulations and on all matters of mutual interest. In
SANDU
III
, SANDU sought an order declaring that the SANDF was not
entitled to implement a transformation policy that raised issues
that
fell within the scope of bargaining topics at the MBC until
the MAB had determined the dispute raised by SANDU concerning the

unilateral implementation of that policy. All these issues relate
to the broader question whether the SANDF bears a duty to bargain
with SANDU arising either from the provisions of section 23(5) of
the Constitution; chapter XX of the regulations; and/or the
Constitution of the MBC. One of the important questions that
arises in the case is whether SANDU is entitled to rely directly
on
section 23(5) of the Constitution when regulations have been acted
to regulate the rights contained in section 23(5).
The
second group of issues relates to whether the individual
regulations under challenge are inconsistent with the Constitution
and therefore invalid. These issues were raised in
SANDU II
and need to be determined in the light of the facts set out in that
case. Finally, SANDU has sought to argue that the conduct
of the
SANDF in failing to consult on the transformation policy in
SANDU
III
constitutes an unfair labour practice. For reasons that
will become plain during the course of this judgment, this is not
an
argument that needs to be addressed in this case.
37
There
can be no doubt that the first group of questions raises
constitutional issues. It was argued not only in the Supreme Court
of Appeal but also in the High Court that these questions need to
be answered in the light of section 23(5) of the Constitution.
The
second group of issues relates to the constitutionality of the
regulations and also clearly raises constitutional issues.
There
can be no doubt either that it is in the interests of justice for
this Court to consider the appeal in this matter. The
SANDF is an
important institution of state tasked with crucial constitutional
responsibilities. It is clear from the record
before us that the
ongoing disputes between it and SANDU are deep-seated. It is
therefore in the public interest that the appeals
be determined.
Duty
to bargain
SANDU
based its argument in this Court on three grounds: first, that
section 23(5) of the Constitution affords trade unions a
right to
bargain with employers that imposes a correlative duty on employers
to bargain with trade unions; secondly, that chapter
XX of the
regulations establishes a duty to bargain on the SANDF; and thirdly
that the Constitution of the MBC establishes a
duty to bargain on
the SANDF. The SANDF argued to the contrary that neither section
23(5) establishes a correlative duty upon
employers to bargain with
trade unions that is judicially enforceable; nor does chapter XX of
the regulations or the Constitution
of the MBC impose a duty to
bargain upon the SANDF.
The
three judgments in the High Court as well as the judgment on the
duty to bargain in the Supreme Court of Appeal commenced
their
analysis with the meaning of section 23(5) of the Constitution and
whether it confers a justiciable duty to bargain. However,
this
does not seem to me to be the correct starting point for the
following reasons.
Section
23(5) provides –
“
Every trade union,
employers’ organisation and employer has the right to engage in
collective bargaining. National legislation
may be enacted to
regulate collective bargaining. To the extent that the legislation
may limit a right in this Chapter, the limitation
must comply with
section 36(1).”
It is
clear that at the minimum section 23(5) confers a right on trade
unions, employers’ organisations and employers to engage
in
collective bargaining that may not be abolished by the legislature,
unless it can be shown that such abolition passes the test
for
justification established in section 36 of the Constitution.
38
In recognising this, we should remember that in the past, black
workers and trade unions that represented them were prohibited
from
engaging in collective bargaining.
39
Preventing a recurrence of this historical injustice is one of the
purposes of section 23(5).
Section
23(5) expressly provides that legislation may be enacted to
regulate collective bargaining. The question that arises
is
whether a litigant may bypass any legislation so enacted and rely
directly on the Constitution. In
NAPTOSA and Others v Minister
of Education, Western Cape, and Others
,
40
the Cape High Court held that a litigant may not bypass the
provisions of the
Labour Relations Act, 66 of 1995
, and rely
directly on the Constitution without challenging the provisions of
the
Labour Relations Act on
constitutional grounds. The question
of whether this approach is correct has since been left open by
this Court on two subsequent
occasions.
41
Then, in
Minister of Health And Another NO v New Clicks South
Africa (Pty) Ltd and Others (Treatment Action Campaign and Another
as
Amici Curiae
),
42
Ngcobo J writing a separate judgment held that there was
considerable force in the approach taken in
NAPTOSA
. He
noted that if it were not to be followed, the result might well be
the creation of dual systems of jurisprudence under the
Constitution and under legislation. In my view, this approach is
correct: where legislation is enacted to give effect to a

constitutional right, a litigant may not bypass that legislation
and rely directly on the Constitution without challenging that
legislation as falling short of the constitutional standard.
Accordingly,
a litigant who seeks to assert his or her right to engage in
collective bargaining under section 23(5) should in
the first place
base his or her case on any legislation enacted to regulate the
right, not on section 23(5). If the legislation
is wanting in its
protection of the section 23(5) right in the litigant’s view,
then that legislation should be challenged
constitutionally. To
permit the litigant to ignore the legislation and rely directly on
the constitutional provision would be
to fail to recognise the
important task conferred upon the legislature by the Constitution
to respect, protect, promote and fulfil
the rights in the Bill of
Rights.
43
The proper approach to be followed should legislation not have
been enacted as contemplated by section 23(5) need not be
considered
now.
In
this case, legislation does exist in the form of chapter XX of the
regulations.
44
There is no constitutional challenge to the regulations in this
regard. On the contrary, SANDU has always sought to rely on
chapter XX of the regulations as well as on section 23 of the
Constitution. Indeed, the primary relief sought in
SANDU I
is an order declaring that the refusal of the SANDF to negotiate
with SANDU unless SANDU meets certain pre-conditions is an

infringement of regulation 36 of chapter XX, and/or regulation 63
of chapter XX,
45
and/or section 23 of the Constitution.
46
Similarly, in
SANDU II
and
SANDU III
, although the
notices of motion did not specify the legal basis for the claims,
the founding affidavits relied both upon the
provisions of chapter
XX of the regulations and the Constitution of the MBC as well as
section 23 of the Constitution.
Once
it is accepted that disputes that arise from collective bargaining
in the SANDF should be considered first in the light of
the
provisions of chapter XX of the regulations rather than section
23(5) of the Constitution, the focus of a court’s attention
will
be different to the focus of both the High Court and the Supreme
Court of Appeal in these three matters. A court will start
with a
consideration of the regulations rather than the constitutional
provision. The regulations, of course, must be construed
in the
context of the Constitution as a whole.
47
Before
turning to the subject matter of the regulations, it should be
noted that were section 23(5) to establish a justiciable
duty to
bargain, enforceable by either employers or unions outside of a
legislative framework to regulate that duty, courts may
be drawn
into a range of controversial, industrial-relations issues. These
issues would include questions relating to the level
at which
bargaining should take place (ie at the level of the workplace, at
the level of an enterprise, or at industry level);
the level of
union membership required to give rise to the duty; the topics of
bargaining and the manner of bargaining. These
are difficult
issues, which have been regulated in different ways in the recent
past in South Africa, as the general principles
governing labour
relations in South Africa have changed several times since the
1980s when the modern trade union movement emerged.
48
As
I have held, however, it is not necessary to determine the proper
interpretation of section 23(5) in this case and we accordingly
refrain from doing so. Accordingly, we neither endorse nor reject
the approach to section 23(5) of the Constitution adopted
by the
Supreme Court of Appeal. As the proper interpretation of that
section need not be decided in this case, it would be inappropriate
to consider the question further.
Chapter XX of the regulations was promulgated, as described above,
after this Court held that members of the SANDF did have the
right
to join trade unions.
49
The objectives of the chapter are described in regulation 3 as
being to provide for –
“
(a) fair labour practices;
(b) the establishment of
military trade unions;
(c) collective bargaining on
certain issues of mutual interest;
(d) to ensure that trade union
activities do not disrupt military operations, military exercises
and training and do not undermine
the Constitutional imperative of
maintaining a disciplined military force; and
(e) generally to provide for an
environment conducive to sound and healthy service relations.”
The
regulations provide for the registration of military trade unions
with a military trade union registrar.
50
Registered military trade unions have a range of organisational
rights that are provided for in the regulations: the right to
recruit members;
51
the right to organise their own affairs;
52
the right of union officials to gain access to information from the
employer, subject to certain exceptions;
53
and the right of access to Department of Defence premises, subject
to arranging the time with the Officer Commanding in advance.
54
Moreover, members of military trade unions are also afforded
organisational and collective rights. They may elect union
representatives
55
and they may authorise the deduction of union dues from their
wages.
56
The
regulations also specify that military trade unions may engage in
collective bargaining on the following issues only –
“
(a) the pay, salaries and
allowances of members, including the pay structure;
(b) general service benefits;
(c) general conditions of
service;
(d) labour practices; and
(e) procedures for engaging in
union activities within units and bases of the Defence Force.”
57
The
regulations also provide that members may not participate in union
activities while on a military operation or undergoing training,
a
matter to which I will return later.
58
Part
4 of the regulations establishes the MBC.
59
The powers and duties of the MBC are described in regulation 63 as
including –
“
(a) the conclusion of
collective agreements;
(b) the enforcement of
collective agreements;
(c) the prevention and
resolution of labour disputes; and
(d) the promotion of labour
relations and training in this regard.”
The
regulations also provide for the MBC to adopt a constitution.
60
According to the regulations, collective agreements
61
are binding upon the parties to such agreement.
62
Moreover, regulation 69(4) provides that unless a collective
agreement provides otherwise, no party may unilaterally withdraw
from it.
The
regulations also provide for the dispute-resolution functions of
the MBC. Regulation 71
63
defines a dispute as any disagreement in respect of a collective
agreement or any other matter which is or could be the subject
of
collective bargaining. It provides that the MBC must attempt to
resolve a dispute in accordance with its Constitution. If
a
dispute is not resolved then the regulations provide that the
dispute shall be referred for resolution to the MAB.
Part
5 of the regulations establishes the MAB. It is clear that the MAB
is the final dispute-resolution agency and all disputes
between the
parties to the MBC which remain unresolved are to be referred to
the MAB.
This
brief account makes plain that what is contemplated by the
regulations is the establishment of a bargaining council, the
MBC,
whose members shall be the employer the Department of Defence as
employer and any military trade union that has been admitted
to the
MBC in terms of the regulations. These parties will engage in
collective bargaining on matters of mutual interest, as
described
in regulation 36, with a view to reaching collective agreements.
Where disputes arise between the parties, the regulations
establish
a dispute procedure, which is elaborated upon in the Constitution
of the MBC, and which contemplates that if the dispute
is not
resolved at the MBC it will be referred to the MAB for final
resolution. The regulations neither contemplate that an
employer
may withdraw from the MBC, nor that either party may unilaterally
impose preconditions for participating at the MBC.
The regulations
also contemplate that where one party raises a matter that is a
permissible bargaining topic, and the parties
are unable to resolve
the matter by bargaining, that matter will be referred to the MAB
for determination.
This
understanding of the regulations echoes that suggested in the
letters written by the Secretary of Defence to SANDU on 18
August
2000, before the MBC had been established, in which it was stated –
“
The Department of Defence is
well aware of the fact that your registration affords your
organisation certain organisational rights.
As far as collective
bargaining rights are concerned, your organisation will be consulted
on matters of mutual interest, but bargaining
can only commence once
you are admitted to the Military Bargaining Council (MBC).”
64
and
“
The Department of Defence is
obliged by law to consult with registered military trade unions on
all policy matters that would affect
their members.”
65
The
Constitution of the MBC was adopted in March 2001 after the first
meetings of the MBC and signed by the two parties to the
MBC at the
time: the employer (the Department of Defence) and SANDU. The
Constitution of the MBC provides that one of the objectives
of the
MBC is to “negotiate and bargain collectively to reach agreement
on matters of mutual interest”.
66
Consistent with the regulations, the Constitution of the MBC
neither contemplates the withdrawal of the employer from the MBC,
nor does it contemplate any unilateral imposition of terms and
conditions for participation in collective bargaining. It contains
a detailed dispute procedure as contemplated by regulation 71.
67
Starting with
SANDU I
, it is clear from this analysis that
the Department of Defence may not withdraw from the MBC
unilaterally without following its
dispute procedure, and may not
unilaterally impose conditions for its participation in the MBC.
It is true that in this case
the withdrawal of the SANDF from the
MBC was a response to the letter written by SANDU on 17 September
2001, in which SANDU had
“warned . . . that
labour unrest could become the result of the Employer’s disregard
for SANDU”.
68
One month later SANDU wrote to the SANDF unequivocally undertaking
that it would neither embark upon nor encourage its members
to
engage in industrial action.
69
The SANDF refused to return to the MBC and imposed certain
pre-conditions for its return. What is clear from the regulations
is that if the Department is aggrieved at the conduct of the union
parties at the MBC, it may declare a dispute and pursue that
dispute to its end. The Department did not follow this route.
Instead it sought unilaterally to withdraw from the MBC and to
impose conditions for its return. The regulations do not permit
the Department to do this.
SANDU
has therefore established that it is entitled to an order declaring
that the Department of Defence may not withdraw from
the MBC and
may not impose pre-conditions on its participation in negotiations
with SANDU at the MBC. This is the relief sought
in
SANDU I
.
It follows therefore that the order made by Van der Westhuizen J
cannot stand.
The
Supreme Court of Appeal reached the opposite conclusion. It
reasoned as follows –
“
In my view, one cannot read
an intention to impose judicially enforceable bargaining on the
SANDF into the Regulations. If no resolution
to a dispute on a
matter of mutual interest is reached because the SANDF refuses to
bargain, that dispute may, after a failed attempt
at conciliation by
the MBC, be referred to the MAB. There is a remedy whether or not
there has been bargaining. Bargaining, while
desirable, is not
essential to the dispute resolution scheme established by ch XX.”
70
(Footnotes omitted.)
In my
view, this passage does not answer the question posed. The question
in this case is not whether the regulations require this
Court to
compel the SANDF to sit at a table and negotiate with a union. The
question is, as has been set out above, whether the
employer was
entitled to withdraw from the MBC and unilaterally impose conditions
for its return. The answer to that question,
as is plain from the
above analysis of the regulations, is that the employer may not
withdraw from the MBC and then unilaterally
impose conditions for
its return. Accordingly the Supreme Court of Appeal order in this
regard must be set aside.
I
turn now to the relief sought in SANDU II in respect of the duty to
bargain. SANDU sought an order that the SANDF and the Department
of Defence are under a duty to bargain with SANDU on the content of
the regulations. In my view, this proposition cannot succeed.

Although it may be appropriate for a public-sector employer to
consult relevant unions on the subject matter of regulations
that
will affect the collective bargaining relationship between the
employer and the unions,
71
it cannot be said that the lawmaker is obliged to bargain over the
content of the law with the union. Nor is there any provision
in
the regulations to suggest otherwise. SANDU could point to no
authority to support its contention on this score other than
section 23(5) of the Constitution. No matter how broadly the terms
“collective bargaining” is construed in section 23(5),
it
cannot include the right of a union to bargain with a legislator on
the content of law.
It
should be emphasised that, in this case, SANDU has not suggested
that the content of the regulations promulgated constituted
an
attempt to bypass or evade the process of bargaining itself. What
the legal situation would be should regulations be used
to evade
the bargaining process need not be decided in this case. In my
view, therefore, the argument that the Department had
a duty to
bargain with SANDU on the subject matter of the regulations must
fail. To the extent that Smit J held otherwise, his
order must be
set aside.
In
SANDU III
, SANDU originally sought an order that the
Department of Defence be interdicted from implementing a
transformation policy prior
to resolution of disputes regarding
that policy by the MAB. As stated above, the SANDF no longer
wishes to implement the transformation
policy that was the subject
matter of
SANDU III
and it is accordingly not necessary to
make any further order in this regard. The underlying legal
dispute between the parties
in
SANDU III
relates to the
question whether the Department is entitled to implement
unilaterally a disputed policy which is being processed
through the
dispute procedure established by the regulations. One can easily
imagine that a similar dispute will arise in the
future relating to
a different policy or dispute. Accordingly, although the dispute
about the particular policy in question
in
SANDU III
may be
moot, the legal dispute concerning the conduct of the Department of
Defence which underlies the dispute in
SANDU III
may arise
again between the parties at any time. It is appropriate therefore
to consider that legal question.
To
interpret the regulations to permit the Department of Defence to
implement a disputed policy, prior to the conclusion of the
dispute-resolution process provided for in the regulations, would
conflict with the overall purpose and effect of the regulations.

The objectives of the regulations are to provide, amongst other
things, for fair labour practices
72
and “generally to provide for an environment conducive to sound
and healthy service relations.”
73
The regulations provide for collective bargaining on a range of
issues including general conditions of service.
74
Unilateral implementation of disputed policies on matters directly
related to conditions of service is not conducive to sound
and
healthy service relations. In particular, given the potential for
conflict that lies within the SANDF and given its history,
75
the unilateral implementation of a disputed transformation policy
may well be extremely harmful to healthy service relations
in the
SANDF.
Despite
these provisions, the SANDF argued that the regulations do not
impose an obligation upon it to exhaust the procedures
set out in
the regulations. If this proposition were to be accepted, the
result would be that the SANDF could at any stage,
despite the
institutions and procedures carefully established in the
regulations to provide for bargaining and dispute resolution,
unilaterally implement its policies over the objections of SANDU.
In my view, the very purpose of the regulations is to prevent
unilateral action by the SANDF in respect of the areas of
permissible bargaining until the procedures provided for in the
regulations
have been exhausted.
I
should emphasise that it is not the SANDF’s argument that there
were urgent circumstances in the present case which required
it to
ignore the dispute procedures established by the regulations and
the Constitution of the MBC. It is not necessary to consider
therefore whether in such special circumstances, the SANDF may act
unilaterally.
It
is clear therefore that SANDU has established that the Department
of Defence is not entitled to implement unilaterally a policy
which
falls within the permissible bargaining topics identified by
regulation 36 before exhausting the dispute procedure provided
for
in the regulations and the Constitution of the MBC. Given that the
SANDF no longer intends to implement the transformation
policy at
issue initially in this case, it is not therefore necessary to make
a declaratory order in this regard. Nevertheless
the order made by
Bertelsmann J is correct in this regard and the Supreme Court of
Appeal order setting that order aside cannot
be upheld. Finally,
it should be noted, that having reached this conclusion, it is not
necessary to consider whether the conduct
of the SANDF in
implementing the transformation policy before the dispute procedure
had run its course constituted an unfair
labour practice as
contemplated in section 23(1) of the Constitution.
Before
proceeding to consider the second group of issues raised in this
appeal it should be emphasised that both parties to the
litigation
accept that a third party mediation process would be valuable in
order to establish a set of procedures and understandings
that will
enable them to go forward in a manner conducive to giving effect to
the objectives of the regulations. Given the extent
of the
conflict and animosity between the parties that is reflected on the
record, there can be no doubt that they are correct
in this regard.
The real nub of the dispute between the parties in this case arose
from the employer’s insistence on its entitlement
unilaterally to
adopt and to implement policies in the face of objections from the
union. It is not surprising that this attitude
gave rise to sharp
discontent in the union. Both parties need to seek mutually
acceptable ways to establish a constructive working
relationship in
the interests not only of the SANDF and its members, but of the
broader interests of the country as a whole.
It
is necessary now to turn to the second group of issues that arise
in this case which relate to the constitutional challenges
to
individual regulations.
Does
regulation 8(b) infringe the Constitution?
Regulation
8 provides –
“
Members have the right to
peaceful and unarmed assembly, demonstration, picket and petition,
and to present petitions in their private
capacity: Provided that
such right shall not be exercised –
(a) while in uniform or wearing
any part of a uniform or displaying any insignia linked to the
Defence Force, in a manner which
indicates in any other way
employment in the Defence Force or the Department of Defence; or
(b) in respect of any matter
concerning either the employment relationship with the Department of
Defence or any matter related
to the Department of Defence.”
SANDU
accepts that regulation 8(a) is constitutional but complains that
regulation 8(b) constitutes an unjustified limitation
of its
members’ right to freedom of expression.
76
As regulation 8(a) contains a general prohibition on the right of
peaceful protest when wearing the SANDF uniform or any insignia
to
indicate employment in the SANDF, it is clear that regulation 8(b)
prohibits peaceful protest by members of the SANDF in their
private
capacities when not wearing the uniform in respect of certain
topics only. Those topics are the employment relationship
with the
SANDF or any other matter related to the Department of Defence.
In
argument, SANDU accepted that item 46 of the Military Disciplinary
Code, (the Code) which they did not challenge, prohibits
private
protest by members of the SANDF which could cause “actual or
potential prejudice to good order and military discipline”.
77
The scope of regulation 8(b), therefore, they conceded, relates
only to acts of private protest against the SANDF or the Department
of Defence which could not cause actual or potential prejudice to
good order and military discipline. The scope of regulation
8(b)
therefore seems to be very narrow.
To
the extent that regulation 8(b) does prohibit conduct that is not
otherwise prohibited by item 46 of the Code, it is clear
that it
constitutes a limitation of the right to freedom of expression
entrenched in section 16 of the Constitution.
78
The scope of that limitation is quite narrow. The question that
then arises is whether it is a justifiable limitation of that
right.
The
SANDF argues that the purpose of the limitation is to promote
military discipline. It is clear that this is the purpose sought
to be achieved by item 46 of the Code which says that members may
not, even in their private capacity, act in a manner that might
cause potential prejudice to good order and military discipline.
Given the clear terms of item 46, it is not clear how section
8(b)
can further the goal of promoting military discipline to the extent
that it covers a field not covered by item 46. In other
words,
regulation 8(b) is merely a repetition of item 46 to the extent
that it covers the same ground that item 46 covers. SANDU’s
complaint is therefore that private conduct of the SANDF members
that is not harmful to military discipline is nevertheless

prohibited by regulation 8(b). To the extent that regulation 8(b)
extends beyond item 46 of the Code, it is not concerned with
the
prevention of actual or potential harm to military discipline. In
the circumstances, I conclude that the SANDF has not established
that regulation 8(b) is justifiable. The purpose they seek to
assert for it is adequately performed by item 46 of the Code,
a
provision not challenged by SANDU.
In
summary, the purpose the SANDF seeks to assert is adequately
achieved by the provisions of item 46 of the Code. To the extent
that regulation 8(b) extends beyond item 46, it has no
justification. In the light of the above, it is concluded that
regulation
8(b) is inconsistent with the Constitution and must be
declared invalid.
Does
regulation 13(a) infringe the Constitution?
Regulation
13 provides –
“A military trade union
shall not affiliate or associate with –
(a) any labour organisation,
labour association, trade union or labour federation that is not
recognised and registered; and
(b) any political party or
organisation.”
SANDU
accepts that regulation 13(b) is a legitimate limitation on its
right of freedom of association. However, it complains
that
regulation 13(a) prohibits association with other trade unions, a
right which is recognised and protected by the International
Labour
Organisation (the ILO).
79
Accordingly, SANDU argues that regulation 13(a) constitutes an
infringement of its right to freedom of association
80
and to form and join a union federation.
81
In considering SANDU’s argument in this regard, it is important
to note that the relevant ILO Convention does not assert the
right
of soldiers or other military personnel to join a trade union but
leaves the extent to which such workers are entitled
to join unions
to be determined by national legislation.
82
Section
23(4)(c) of the Constitution permits trade unions to form and join
a federation. To this extent, therefore, it is clear
that
regulation 13(a) constitutes a limitation of that right. The
question that next arises is whether that limitation is justifiable
in terms of section 36 of the Constitution.
83
Section
199(7) of the Constitution demands that the security services,
including the SANDF, not act in a politically-partisan
manner. It
provides –
“
Neither the security
services, nor any of their members, may, in the performance of their
functions –
(a) prejudice a political party
interest that is legitimate in terms of the Constitution; or
(b) further, in a partisan
manner, any interest of a political party.”
This
provision is of profound political importance as it underlines the
principle that in a democracy the armed forces and police
must act
in a manner which is non-partisan and which is perceived by all
citizens to be even-handed.
SANDU
accepts that, given the constitutional requirement that the SANDF
be politically unaffiliated, regulation 13(b) is legitimate
but
argues that affiliation to and association with other unions does
not prejudice the constitutional requirement of institutional
neutrality that the SANDF bears. However, SANDU fails to
acknowledge that many unions in South Africa have express political
affiliations which would render affiliation to or association with
those unions suspect for the same reason that affiliation
with a
political party would be constitutionally suspect.
SANDU
sought to argue that even if they could not establish that the
prohibition on affiliation in regulation 13(a) is constitutionally
impermissible, the prohibition on association in the regulation is
too wide. In my view, this argument too must fail. Given
the
importance of the constitutional requirement of political
neutrality on the part of the SANDF, it is not impermissible for
the regulations to impose a limit on military trade unions from
associating with other unions. In reaching this conclusion,
it is
important to note that international labour law recognises that the
rights of military trade unions, if permitted to exist
at all, may
be regulated by national legislation. In reaching this conclusion,
it should be emphasised that what constitutes
“association” for
the purposes of the regulation will need to be considered in the
light of the constitutional principle
underlying both section
199(7) of the Constitution and regulation 13(a). “Association”
should therefore be understood to
be a relationship between a
military union and another union which might give rise to a
suggestion that the SANDF is not politically
neutral. The
limitation on section 23(4)(c) contained in regulation 13(a) is
justified in light of the special circumstances
of the military and
is not unconstitutional. SANDU’s challenge on this score
therefore fails.
Do
regulations 25 and 27 infringe the Constitution?
Regulation
25(a) provides that a military trade union representative has the
right to “assist” members in grievance and disciplinary
proceedings but does not have a right to represent members.
84
Correlatively, regulation 27 provides that military trade unions
may assist their members with respect to grievance procedures
and
disciplinary procedures but that such assistance shall not include
representation.
85
SANDU
argues that these provisions violate section 23(1) of the
Constitution which entrenches the right to fair labour practices,
as well as section 33(1) of the Constitution which entrenches the
right to just administrative action and section 35(3) which
entrenches the right to a fair trial, to the extent that
proceedings before a military court are also affected by these
provisions.
SANDU also argues that the regulations are in conflict
with the principles laid down by the ILO Committee on Freedom of
Association.
In
their affidavits, the SANDF gave no reason for the limitation. The
Supreme Court of Appeal upheld the provisions on the grounds
that
they do not constitute a breach of fundamental rights. The Supreme
Court of Appeal reasoned as follows –
“
Discipline in the SANDF is
maintained through the application of the Military Discipline Code,
and in accordance with the provisions
of the
Military Discipline
Supplementary Measures Act 16 of 1999
. Disciplinary offences are
dealt with, either, at the election of the member, in a disciplinary
hearing conducted by a commanding
officer, or in a trial before a
military court. Where a member is tried by a military court he or
she is entitled to legal representation
of his or her choice at his
or her own expense, or to military defence counsel provided at the
expense of the State. In relation
to all disciplinary proceedings,
including those before a military court, the regulations allow for
assistance by a trade-union
representative. I do not think the
regulation, insofar as it relates to disciplinary proceedings,
conflicts with the Constitution.
Adequate representation is allowed
to members in such proceedings and I see no reason why that should
necessarily extend to trade-union
representation in relation to
matters of military discipline. Grievances, on the other hand, are
dealt with in writing through
the chain of command. The failure to
allow representation, as opposed to assistance, by a trade-union
representative in relation
to a process that takes place only in
writing, does not seem to me to offend any of the constitutional
provisions upon which SANDU
relied.”
86
(Footnotes omitted.)
The
Supreme Court of Appeal may be correct that where grievances are
pursued only in writing, there is no material difference
between
“assistance” and “representation”; however in my view that
is not the proper approach to the question. The question
is what
are the rights of trade unions and their members in respect of
grievance and disciplinary proceedings.
One
of the most important tasks of trade unions is to represent its
members in disciplinary hearings. As the ILO Committee on
Freedom
of Association has observed â€“
“
The right of workers to be
represented by an official of their union in any proceedings
involving their working conditions, in accordance
with procedures
prescribed by laws or regulations, is a right that is generally
recognized in a large number of countries. It
is particularly
important that this right should be respected when workers whose
level of education does not enable them to defend
themselves
adequately without the assistance of a more experienced person”.
87
It is
thus internationally accepted that once trade unions are recognised
by an employer, trade union representatives have a right
to
represent their members in disciplinary hearings. In my view, the
right of representation in grievance and disciplinary proceedings
forms part of the right to fair labour practices protected by
section 23(1) of the Constitution. This right cannot be limited
unless it is reasonable and justifiable to do so. The Minister has
proffered no reason for limiting this right in the regulations.

Accordingly, the regulations must be declared inconsistent with the
Constitution to this extent.
The
unconstitutionality can be rectified by the remedial techniques of
severance and reading-in. To achieve this, the words “but
not to
representation” must be severed from regulation 25(a); and the
proviso to regulation 27 must be severed from the regulation.
In
addition, the words “represent and” must be read in before the
word “assist” in regulations 25(a) and (b) and regulations
27(a) and (b). Once the techniques of severance and reading-in
have been applied, regulations 25(a) and (b) and regulations
27(a)
and (b) will read as follows –
“
25. A military trade union
representative has the right to –
(a) at the request of a member,
represent and assist the member with respect to grievance and
disciplinary proceedings;
(b) at the request of a member,
represent and assist the member in redressing any alleged unjust
administrative action or unfair
labour practice through the use of
the official channels for redressing such alleged unjust
administrative action or unfair labour
practice.
27. Military trade unions may –
(a) represent and assist their
members with respect to grievance procedures, including the
formulation of grievances; or
(b) represent and assist their
members with respect to any disciplinary hearings and military court
proceedings,
It
must be emphasised, however, that the right is to representation by
a trade union official, office-bearer or military trade
union
representative. Office-bearers will be members of the SANDF whom
have been elected office-bearers of the union and military
trade
union representatives will similarly be members of the trade union
whom have been elected to represent their fellow union
members.
88
A SANDU member may not ordinarily insist that a union official
represent him or her in circumstances where a military trade
union
representative is available to do so, or where such insistence
would unduly delay the disciplinary process.
Does
regulation 37 infringe the Constitution?
Regulation
37(1) provides that “no member may participate in the activities
of a military trade union while participating in
a military
operation” and regulation 37(2) provides that no union may
consult or liaise with members whilst such members participate
in
military operations, exercises or training.
89
SANDU argues that regulation 37 violates both section 23(2)(b) of
the Constitution which entrenches the right to participate
in union
activities and section 23(4) which entrenches the right of a union
to determine its own programmes and activities.
SANDU
argues that regulation 37 must be understood in the context of
regulation 39 which prohibits military trade unions from
activities
that would impede military operations, exercises or training.
90
SANDU argues that regulation 39 provides adequate protection for
military operations, exercises and training from any harm that
could be caused by union activities.
The
Minister responds by saying that to allow trade union activities
during military operations, exercises or training would constitute
a threat to the safety of all concerned. Counsel for the Minister
also argued that it was necessary to have a clear rule so
that
disputes would not arise concerning its application. In my view,
the Minister is correct that allowing trade union activities
to
continue during military operations, exercises or training might
threaten the ability of the SANDF to carry out its constitutional
mandate. Given the importance of ensuring that the military is
able to perform its constitutional obligations of ensuring the
safety of the Republic, and the potential harm that performing
union activities might cause during operations and training, I
am
persuaded that the Minister has established that the limitation of
the rights conferred by sections 23(2)(b) and 23(4) is
justifiable
in the circumstances.
Does
regulation 73 infringe the Constitution?
Regulation
73 vests the Minister with the power to appoint the members of the
MAB
91
which, as we have seen, is the institution responsible for
determining all disputes between the employer and SANDU. As the

final arbiter of disputes in an environment in which industrial
action is impermissible, both the Department of Defence and SANDU
must have confidence in the institutional competence and
independence of the MAB. SANDU argued that because the Minister is
the political head of the Department of Defence, which is the
employer, regulation 73 creates the perception of unfairness in
that it suggests that the employer has control over the appointment
of members of the MAB.
The
Supreme Court of Appeal emphasised that the regulations require
that even though appointed by the Minister the members of
the Board
must be independent. The SANDF also relied on this argument. In
response, SANDU argued that the Board must be seen
to be
independent and that in conferring the power of appointment upon
the Minister alone, the regulations failed to establish
confidence
that the MAB would be independent. SANDU accordingly argued that
regulation 73 violates both section 23(1) of the
Constitution which
entrenches the right to fair labour practices and section 34 of the
Constitution which entrenches the right
to have disputes resolved
by courts or other independent and impartial tribunals.
92
In
considering this argument, it is important to realise that the
Minister does act on behalf of the Department of Defence as
employer in disputes that arise with SANDU. For example, it will
be recalled on the facts of this case that it was the Minister
who
wrote to SANDU on 19 September 2001, suspending negotiations with
SANDU at the MBC.
93
Given the role that the Minister performs as an employer, SANDU’s
argument – that the Minister’s power to appoint the
members of
the MAB without any consultation gives rise to a perception that
the MAB is not an independent and impartial tribunal
as
contemplated by section 34 of the Constitution – must be
accepted. It is not enough to respond as the Supreme Court of
Appeal did that the Minister is obliged to appoint independent
persons to the MAB. Giving one party to a dispute effective

control over the appointment of the persons that will resolve that
dispute does not result in a forum that is independent and
impartial in the eyes of the other parties to the dispute.
In
order for the MAB to be perceived as an independent and impartial
tribunal, either its members should be appointed by a body
such as
the Judicial Services Commission that is perceived to be
independent of the Department of Defence, or the members of
the MAB
should be appointed by the Minister in consultation with SANDU.
There
are a variety of ways in which the appointment process could be
amended to comply with the provisions of section 34 of the
Constitution. In argument, SANDU made clear that they have no
objection to the current members of the MAB. Accordingly, it
is
just and equitable to declare regulation 73 inconsistent with the
Constitution and invalid, but to suspend the declaration
of
invalidity for a period of six months to permit the Minister to
amend the regulations appropriately. Pending the amendment
of the
regulations, the current membership of the MAB will remain
unaffected.
Summary
In summary, I have concluded that an order should be made declaring
that the SANDF was not entitled to withdraw unilaterally
from the
MBC and to impose pre-conditions for its return. The order of the
High Court made by Van der Westhuizen J and the order
of the
Supreme Court of Appeal on this issue must accordingly be set
aside. Similarly, I have concluded that the order made
by Smit J
in relation to the duty to bargain on the subject matter of the
regulations must also be set aside. The Court has
concluded that
regulations 8(b), 25(a) and 25(b), 27, and 73 are invalid either
entirely or to some extent. The orders of invalidity
made by Smit
J in respect of these regulations are therefore by and large
confirmed. For clarity, however, the order of Smit
J is set aside
in its entirety and orders of invalidity are made separately by
this Court. Finally, we have concluded that the
SANDF was not
entitled to implement the transformation policy prior to the
exhaustion of the disputes process established by
the regulations.
However, SANDF no longer seeks to impose the disputed policy, so no
order is made in that regard, and the order
of Bertelsmann J which
was set aside by the Supreme Court of Appeal is not reinstated as
it is not necessary to do so.
Costs
In
the result, SANDU has been materially successful. The ordinary
rule in this Court is that where a litigant has successfully
defended a constitutional claim, it is awarded costs. A different
rule often applies in labour matters. However, neither party
argued that a different rule should apply in this case.
Accordingly, it is appropriate that the first, second and third
respondents
in all three matters (
SANDU I
,
SANDU II
and
SANDU III
) be ordered to pay the costs of the applicants
in all three courts in all three matters.
Order
The
following order is made:
1. The application for leave to appeal is granted.
2. The
appeal is upheld in part and dismissed in part.
3. The order made by the Supreme Court of Appeal (per Conradie JA)
is set aside.
4. The
orders made by Van der Westhuizen J in the High Court in cases
23690/2001 and 29868/2001 are set aside.
5. The
orders made by Smit J in the High Court in cases 17687/2002 and
19211/2002 are set aside.
6.
The order made by Bertelsmann J in the High Court in case
15790/2003 is set aside.
7. The
order made by the Supreme Court of Appeal (per Nugent JA) is set
aside save in respect of the order of invalidity in respect
of
regulation 19 of chapter XX of the General Regulations promulgated
under the Defence Act, 44 of 1957, which stands.
8. It
is declared that the Department of Defence may not in terms of
chapter XX of the General Regulations promulgated under the
Defence
Act, 44 of 1957 unilaterally suspend negotiations at the Military
Bargaining Council and may not unilaterally impose pre-conditions
on
the South African National Defence Union which must be met before it
resumes bargaining at the Military Bargaining Council.
9. It
is declared that regulation 8(b) of chapter XX of the General
Regulations promulgated under the Defence Act, 44 of 1957, is
inconsistent with the Constitution and invalid.
10.1 It
is declared that the words “but not to representation” in
regulation 25(a) of chapter XX of the General Regulations
promulgated under the Defence Act, 44 of 1957, are inconsistent with
the Constitution and invalid and the words are accordingly
severed
from the regulation;
10.2 It
is declared that the words “provided that such assistance shall
not include representation by an official, officer bearer
or
military trade union representative” in regulation 27 of chapter
XX of the General Regulations promulgated under the Defence
Act, 44
of 1957, are inconsistent with the Constitution and invalid and the
words are accordingly severed from the regulation;
10.3 It
is declared that the omission of the words “represent and”
before the word “assist” in regulations 25(a) and (b)
and
regulation 27 of chapter XX of the General Regulations promulgated
under the Defence Act, 44 of 1957, is inconsistent with
the
Constitution and invalid;
10.4 It
is declared that the words “represent and” must be read-in
before the word “assist” in regulations 25(a) and (b)
and
regulation 27 of chapter XX of the General Regulations promulgated
under the Defence Act, 44 of 1957.
10.5 Once
the severance and reading-in referred to in paragraphs 10.1-10.4 of
this order have been done, regulation 25(a) and (b)
and regulation
27 will read as follows:
“25. A military trade union representative has the right to –
(a) at the request of a member, represent and assist the member with
respect to grievance and disciplinary proceedings;
(b) at
the request of a member, represent and assist the member in
redressing any alleged unjust administrative action or unfair
labour
practice through the use of the official channels for redressing
such alleged unjust administrative action or unfair labour
practice;
. . . .”
and
“27. Military
trade unions may –
(a) represent and assist their members with respect to grievance
procedures, including the formulation of grievances; or
(b)
represent and assist their members with respect to any disciplinary
hearings and military court proceedings.”
11.1 It is declared that regulation 73 of chapter XX of the General
Regulations promulgated under the Defence Act, 44 of 1957,
is
inconsistent with the Constitution and invalid.
11.2 The
declaration of invalidity made in paragraph 11.1 of this order is
suspended for a period of six months from the date of
this order.
12. Any
appointment made to the Military Arbitration Board under regulation
73 shall not be affected by the declaration of invalidity
made in
paragraph 11.1 of this order.
13. The
first, second and third respondents are ordered to pay the costs of
the applicant occasioned by the five applications in
the High Court,
as well as the appeals to the Supreme Court of Appeal and to this
Court jointly and severally, such costs to include
the costs
attendant upon the employment of two counsel.
Moseneke
DCJ, Madala J, Mokgoro J, Navsa AJ, Ngcobo J, Nkabinde J, Sachs J
and Skweyiya J concur in the judgment of O’Regan J.
For the Applicant: Advocate G Marcus SC and Advocate M Chaskalson
instructed by Griesel & Breytenbach Attorneys.
For the
Respondents: Advocate P Pauw SC and Advocate N M Oosthuizen
instructed by the State Attorney, Pretoria.
1
Section
126B of the Defence Act, 44 of 1957 (the 1957 Act) provides –
“
(1)
A member of the Permanent Force shall not be or become a member of
any trade union as defined in section 1 of the Labour Relations
Act,
1956 (Act No. 28 of 1956): Provided that this provision shall not
preclude any member of such Force from being or becoming
a member of
any professional or vocational institute, society, association or
like body approved by the Minister.”
2
[1999] ZACC 7
;
1999
(4) SA 469
(CC);
1999 (6) BCLR 615
(CC).
3
Id
at paras 42 and 45.
4
The
regulations contained in R998 were published in Government Gazette
20376 of 20 August 1999.
5
Regulation
43(1)(e).
6
Section
106(2) of the
2002 Act.
7
Regulation
68(1).
8
Regulation
63(a).
9
Clause
5(a) of the Constitution of the MBC.
10
Clause
7(a) of the Constitution of the MBC provides that –
“
The Council comprises of the Department of Defence,
as employer, at Departmental level and those Military Trade Unions –
(i) referred to and admitted to the Council in terms
of Regulation 67 of the General Regulations; and
(ii) referred to and admitted in terms of Regulation
68 of the General Regulations, upon a decision of the Council, as
contemplated
in Regulation 68(4) of the General Regulations.”
11
Part
5 of the regulations.
12
See
Part 3 of the regulations which provides for a Registrar of Military
Trade Unions designated by the Minister in terms of regulation
41 to
register military trade unions.
13
The
other union was the South African Security Forces Union which
represented 11 000 members, constituting approximately 18% of
uniformed personnel at the time the applications were launched.
14
SANDU
does not dispute this figure, but notes that it has some members,
not included in the membership total furnished by the Department
of
Defence, who pay subscriptions directly to SANDU and not by way of a
deduction from their salaries.
15
See
Alby et al
Labor
Institutions, Labor-Management Relations and Social Dialogue
(World
Bank, Washington DC 2005) 43, noting the use of the
relationship-by-objective process in South Africa. See also Bendix
Industrial
Relations in South Africa
(Juta,
Johannesburg 1996).
16
These
four territories which now form part of the Republic of South Africa
had been afforded independent status by the former South
African
government as part of its apartheid policy.
17
Section
200(2) of the Constitution.
18
Case
no 23690/2001 launched on 4 October 2001.
19
SANDU
v Minister of Defence and Others
2003 (3) SA 239
(T) (
SANDU
I
).
20
Case
no 29868/2001 launched on 13 November 2001. There is a fourth
respondent in this second application in
SANDU
I
,
Mr P Moloto, the Acting Chairperson of the MBC.
21
Above at paras -. During the proceedings in the High Court, SANDU
amended the relief it sought.
SANDU
I
above
n at 242-243. The relief finally sought by it was the following –
“
1. . . .
1.1 Declaring
that the refusal of the first and second respondents to negotiate
with the applicant in its capacity as the collective
representative
of its members in the employ or service of the South African
National Defence Force (the members), unless, first,
the applicant
agrees to mediation and/or unless, secondly, it acknowledges that
the respondent is entitled unilaterally to amend
existing policy
and/or to implement new policy when this is considered to be in the
public interest and/or until, thirdly, the
parties have agreed to
the manner and form of collective bargaining within the existing
structure created for the process, constitutes
an infringement of
the provisions of –
1.1.1 reg 36 of “XX” of the general regulations of
the South African National Defence Force and the Reserve (the
regulations)
permitting and entitling the applicant, as a military
trade union, to negotiate on behalf of its members on the topic
therein stated;
and/or
1.1.2 reg 63 as read with the balance of part 4 of the
regulations, which confers on the applicant, as a member of the
Military
Bargaining Council (the council), the right to participate
in the attainment of the objects of the council, including the
conclusion
of collective agreements; and/or
1.1.3 s 23 of the Constitution of the Republic of
South Africa, Act 108 of 1996, which enshrines the right to fair
labour practices.
1.2
Interdicting, restraining and preventing the first and second
respondents from refusing to negotiate with the applicant unless
the
applicant complies with the conditions referred to in para 1.1 above
or with such other conditions as it may, without good
cause, elect
to impose.
2. . . .
2.1 declaring that the first, second and third
respondents’ implementation of the staffing policy announced in
circular CJSUP/HR
SUP CEN/R/101/1/B and CJSUP/HR SUP CEN/R/502/8,
dated 4 October 2001, alternatively new or amended terms and
conditions of an employer
of service, without the applicant's
concurrence or without first negotiating with the applicant,
representing the members as aforesaid,
in good faith to deadlock
over them, constitutes an infringement of the applicable enactments;
2.2 interdicting, restraining and preventing the
first, second and third respondents from implementing or continuing
to implement
the staffing policy announced in circular . . . ,
dated 4 October 2001, alternatively new or amended terms and
conditions of employment of service, without first satisfying the
requirements referred to in para 2.1 above.
3. Costs of the second application under Case No
29868/01 (including the costs of any day on which costs were
reserved) to be paid
by the first, second and third respondents.
4. Costs
of the supplementary affidavit and further supplementary affidavits
filed and delivered by the applicant, to be paid by
the first,
second and third respondents.”
22
SANDU
I
above
n
at
256I-257A.
23
Id
at 261C-E.
24
The
first application was under Case No 17687/2002 launched on 1 July
2002 and the second under Case No 19211/2002 launched on 12
July
2002. In the second application, there is a second applicant, Mr S
Nofemele.
25
2004
(4) SA 10
(T);
2003 (9) BCLR 1055
(T) (
SANDU
II
).
Judgment was handed down on 17 July 2003.
26
Id
at 23H-I.
27
Id
at 26G-27B.
28
Id
at 41E-G.
29
Id
at 41-43. Smit J ordered –
“
1.
In case No 19211/2002 it is ordered that:
. . . .
1.3 Subsection 8(b) of the regulations is declared to
be inconsistent with the Constitution and invalid, and such
subsection is
severed from the regulations;
1.4 Subsection 13(a) of the regulations is declared to
be inconsistent with the Constitution and invalid, and such
subsection is
severed from the regulations;
1.5 Section 19 of the regulations is declared to be
inconsistent with the Constitution and invalid, and such section is
severed
from the regulations;
.
. . .
2.
In case No 17687/2002 it is ordered that:
2.1 Section 41 of the General Regulations for the South
African National Defence Force and Reserve published in GN R998 of
20 August
1999 (‘the Regulations’) is declared to be
inconsistent with the Constitution and invalid to the extent that it
empowers the
first respondent to appoint the Registrar of Military
Trade Unions.
2.2 The appointment by the first respondent of Mr D C M
Rathebe as the Registrar of Military Trade Unions is set aside.
2.3 It is declared that the power of the Registrar of
Military Trade Unions to withdraw the registration of a military
trade union
in terms of s 53 of the regulations is subject to the
requirement of the giving of notice as contained in ss 49(1) and (2)
of the
regulations.
2.4 The first respondent is ordered to pay the
applicants’ costs, such costs to include the costs consequent upon
the employment
of two counsel.”
30
South
African National Defence Union and Others v Minister of Defence
(T)
Case No 15790/2003, 14 July 2003, unreported (
SANDU
III
).
There are two applicants in addition to SANDU in this case: the
second applicant is Lance Corporal P Oerson and the third applicant
is Pioneer L M Malemela.
31
The
policy was called the “Revised Implementation Measures:
Transformation and Restructuring of the Department of Defence”,
reference number CJSUP/CHRSUP/R/107/16/P.
32
The
Public Service Coordinating Bargaining Council was established in
terms of section 36 read with Schedule 1 of the
Labour Relations
Act, 66 of 1995
. It is a central bargaining council that
coordinates the various bargaining councils in the different sectors
of the public service.
33
Above
n at 1-2. The relief requested by SANDU stated –
“
2. That
the first to third respondents be restrained and interdicted from
implementing and proceeding with the Revised Implementation
Measures: transformation and restructuring of the Department of
Defence under reference number CJSUP/CHRSUP/R/107/16/P dated 21
May
2003 pertaining to members of the SANDF pending finalisation of the
dispute concerning such implementation referred to the
Military
Arbitration Board in case number MAB01/2003 in accordance with the
dispute resolution procedures as provided for in the
regulations to
the Defence Act and the Military Bargaining Council Constitution.
3. That
the first to third respondents be restrained and interdicted from
continuing with any implementation of any aspect which
forms the
subject of a dispute which had already been declared in terms of the
dispute resolution procedures as provided for in
the aforesaid
regulations and the MBC Constitution and referred for arbitration to
the Military Arbitration Board, pending resolution
of such dispute
either by means of conciliation or arbitration as prescribed, and in
which dispute the issue of collective bargaining
is raised.”
34
South
African National Defence Union v Minister of Defence and Others;
Minister of Defence and Others v South African National Defence
Union and Others
2007 (1) SA 402
(SCA);
2007 (4) BCLR 398
(SCA) at para 2.
35
Id
at para 25.
36
Minister
of Defence and Others v South African National Defence Union;
Minister of Defence and Others v South African National Defence
Union and Another
2007 (1) SA 422
(SCA).
37
See
para [74] below.
38
Section
36(1) provides –
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is
reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors including –
the nature of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relation between the limitation and its purpose;
and
less restrictive means to achieve the purpose.”
39
Black workers were excluded from the Industrial Conciliation Act, 11
of 1924, which was the first legislation to regulate collective
bargaining in South Africa. Its successor, the Industrial
Conciliation Act, 28 of 1956, also excluded black workers from its

ambit, although workers classified as “coloured” and “asian”
under apartheid laws were included within its scope. During
the
1950s, the Native Labour (Settlement of Disputes) Act, 48 of 1953,
was enacted which provided certain procedures for the resolution
of
disputes arising between black African workers and their employers.
However, black workers were not permitted to join trade
unions, nor
were they permitted to strike. It was only in 1979, with the
enactment of the Industrial Conciliation Amendment Act,
94 of 1979,
following on the recommendations of the Wiehahn Commission, that
black workers were included within the scope of the
labour
legislation and permitted to join trade unions. For a useful
discussion see Du Toit et al
Labour
Relations Law: A Comprehensive Guide
4
ed (Lexis Nexis Butterworths, Durban 2003) 6-12. See also
International Labour Office
Prelude
to Change: Industrial Relations Reform in South Africa: Report of
the Fact-finding and Conciliation Commission on Freedom
of
Association Concerning the Republic of South Africa
(ILO,
Geneva 1992).
40
2001
(2) SA 112
(C) at 123I-J;
2001 (4) BCLR 388
(C) at 396I-J.
41
National
Education Health and Allied Workers Union v University of Cape Town
and Others
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) (
NEHAWU
)
at para 17;
Ingledew
v Financial Services Board: In Re Financial Services Board v Van Der
Merwe and Another
[2003] ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC) at paras 23-24.
42
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at paras 434-437.
Similar reasoning was adopted in that case by Chaskalson CJ.
Without reference to
NAPTOSA
Chaskalson CJ held, at paras 95-96, that because the Promotion of
Administrative Justice Act, 3 of 2000 (PAJA) is national legislation
passed to give effect to the rights in section 33, a litigant cannot
avoid the provisions of PAJA and rely directly on the Constitution.
43
Section
7(2) of the Constitution provides – “The state must respect,
protect, promote and fulfil the rights in the Bill of Rights.”

See also
NEHAWU
above n at para 14.
44
Section
239 of the Constitution defines “national legislation” to
include “subordinate legislation made in terms of an Act
of
Parliament.” The regulations clearly constitute such subordinate
legislation as they were promulgated in terms of the
1957 Act.
45
See
para [59] below.
46
See
para above.
47
Section
39(2) of the Constitution provides – “When interpreting any
legislation, and when developing the common law or customary
law,
every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.”
48
See
above n for a discussion of the history of a dual system of
industrial relations law in South Africa. Following upon the

recommendations of the Wiehahn Commission, the Industrial
Conciliation Act, 28 of 1956, was extended to cover black African
workers
and an unfair labour practice jurisdiction was afforded to
the Industrial Court, which resulted in the development of an unfair
dismissal jurisprudence and a duty to bargain. In 1988,
controversial amendments to the
Labour Relations Act were
introduced
by the Labour Relations Amendment Act, 83 of 1988. One of the first
tasks of the newly elected democratic government
was the reform of
labour law, which resulted in the enactment of the
Labour Relations,
Act 66 of 1995
. For a useful commentary, see Du Toit above n at
6-20. See also Khoza and Bendix “The Impact of Law on the Nature
and Function
of Collective Bargaining in South African Industrial
Relations” (1994) 14
Industrial
Relations Journal of South Africa
at
5-20.
49
See
para Before turning to the facts of the applications before us, it will be useful to describe briefly the background to the dispute.
The SANDF includes the South African army, navy and air force. The Permanent Force of the SANDF consists of full-time military
personnel. Until 1999 there was a statutory prohibition on members of the Permanent Force being members of trade unions.1 That
prohibition was declared unconstitutional on 26 May 1999 by this Court in South African National Defence Union v Minister of Defence
and Another (the 1999 SANDU decision).2
above.
50
See
Part 3
of the regulations.
51
Regulation
10.
52
">
52
Regulation
11.
53
">
53
Regulations
21
(duty to disclose information) and 22 (classified information).
54
Regulation
33.
55
">
55
Regulation
23.
56
">
56
Regulations
28
-
31
.
57
">
57
Regulation
36.
58
Regulation
37. See below n .
59
Regulation
62 provides – “The Military Bargaining Council is hereby
established.” In this regard, it should also be noted
that
section 55 of the 2002 Act provides as follows –
“
(1)
Members of the Regular Force and Reserve Force must receive such
pay, salaries and entitlements including allowances, disbursements
and other benefits in respect of their service, training or duty in
terms of this Act as may from time to time be agreed upon in
the
Military Bargaining Council.
(2) If no agreement contemplated in subsection (1) can
be reached in the Military Bargaining Council, the Minister may,
after consideration
of any advisory report by the Military
Arbitration Board and with the approval of the Minister of Finance,
determine the pay, salaries
and entitlements contemplated in that
subsection.”
60
Regulations
64 and 67(4).
61
“
Agreement”
is defined in regulation 1 as “a binding written agreement
concluded between the parties to the Council in respect
of matters
of mutual interest, and ‘collective agreement’ shall have the
same meaning”.
62
Regulation
69(2).
63
Regulation
71 provides –
“
(1) In this regulation, ‘dispute’ means any
disagreement in respect of a collective agreement, or any other
matter which is
or could be the subject of collective bargaining,
and the parties to the dispute may include –
parties to the Council;
military trade unions not party to the Council; and
members.
(2) The Council shall attempt to resolve a dispute
between the parties through conciliation in accordance with the
constitution
of the Council.
(3) A party who refers a dispute to the Council must
satisfy the Council that a copy of the referral has been served on
all the
other parties to the dispute.
(4) The Council may enter into an agreement with an
independent agency for the purposes of conducting conciliation in
terms of its
dispute resolution functions specified in this section.
(5) If an agency contemplated in subregulation (4) is
unable to achieve a conciliation within 60 days of referral –
that agency shall issue a certificate to this extent;
and
the Council shall refer the matter to the Board.”
64
See
para [10] above.
65
See
para [11] above.
66
Above
n .
67
Above
n .
68
See
para above. As to the unlawfulness of industrial action by members
of the SANDF, see regulation 6 which provides that –
“No member
may participate in a strike, secondary strike or incite other
members to strike or to support or to participate in
a secondary
strike.” See also section 104(13) of the 2002 Act which provides
that –
“
Any
person who recruits or attempts to recruit any member of the Regular
Force for membership of any trade union other than a military
trade
union which is duly authorised to act as such, or incites or
attempts to incite a member of the Defence Force to participate
in
strikes, demonstrations or protests prohibited in terms of the
regulations, is guilty of an offence and liable on conviction
to a
fine or imprisonment for a period not exceeding five years”.
69
See
para above.
70
Above
n at para 29.
71
See
New
Clicks
above
n in which the Court had to consider
whether
PAJA applies to the making of regulations. Five judges held that
the Act did apply to the making of the regulations at
issue in that
case; five judges left the matter open; and one judge held that
although the PAJA does not apply, the principle of
legality requires
consultation on the making of subordinate legislation in certain
circumstances. See also the approach this Court
has taken to public
consultation in the making of legislation in
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006
(6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) and
Matatiele
Municipality and Others v President of the Republic of South Africa
and Others
[2006] ZACC 12
;
2007
(1) BCLR 47
(CC).
72
Regulation
3(a) above para [57].
73
Regulation
3(e) above para .
74
Regulation
36 above para .
75
See
paras - above.
76
Section
16(1) of the Constitution provides –
“
Everyone has the right to freedom of expression,
which includes –
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific
research.”
77
Item
46 of the Military Disciplinary Code, Schedule 1 to the 1957 Act,
retained by section 106(1) of the 2002 Act read with the
schedule to
that Act, provides –
“
Any
person who by act or omission causes actual or potential prejudice
to good order and military discipline, shall be guilty of
an offence
and liable on conviction to imprisonment for a period not exceeding
one year.”
78
The
1999
SANDU
decision
above n at paras 6-14.
79
Article
5 of the Freedom of Association and Protection of the Right to
Organise Convention (ILO No. 87), 68 U.N.T.S. 17, into force
4 July
1950, provides –
“
Workers’
and employers’ organisations shall have the right to establish and
join federations and confederations and any such
organisation,
federation or confederation shall have the right to affiliate with
international organisations of workers and employers.”
80
Section
18 of the Constitution provides – “Everyone has the right to
freedom of association.”
81
See
above at para .
82
Article
9(1) of ILO No. 87 above n provides that – “The extent to
which the guarantees provided for in this Convention shall
apply to
the armed forces and the police shall be determined by national laws
or regulations.”
83
Above
n .
84
Regulation
25 provides –
“
A
military trade union representative has the right to –
(a) at the request of a member, assist the member with
respect to grievance and disciplinary proceedings, but not to
representation;
(b) at the request of a member, assist the member in
redressing any alleged unjust administrative action or unfair labour
practice
through the use of the official channels for redressing
such alleged unjust administrative action or unfair labour practice;
(c) report, in writing, any alleged contravention of
these Regulations or a collective agreement binding on the employer
to –
(i) the registered military trade union;
(ii) the commander or manager of the unit, base,
headquarters or head office; and
(iii) failing any action by the commander or manager to
remedy or solve the alleged contravention, the immediate superior of
such
commander or manager be so informed.
(d) perform any other function agreed to in the form of
a collective agreement.”
85
Regulation
27 provides –
“
Military
trade unions may –
(a) assist their members with respect to grievance
procedures, including the formulation of grievances; or
(b) assist their members with respect to any
disciplinary hearings and military court proceedings,
provided
that such assistance shall not include representation by an
official, office bearer or military trade union representative.”
86
Above
n at para 27.
87
Freedom
of Association:
Digest
of decisions and principles of the Freedom of Association Committee
of the Governing Body of the ILO
5 ed (ILO, Geneva 2006) at para 517.
88
Regulation
23 provides for the election of military trade union representatives
from amongst union members in the SANDF.
89
Regulation
37 provides –
“
(1) No member may participate in the activities of a
military trade union while participating in a military operation
including
operation in fulfilment of an authorised international
obligation as contemplated in section 201(2)(c) of the Constitution
or military
exercise, undergoing training as an integral part of a
military operation or during military training.
(2) No military trade union may liaise or consult with
its members whilst such members participate in a military operation
or exercise,
undergo training as an integral part of a military
operation or during military training.”
90
Regulation
39 provides –
“
A military trade union shall not undertake or
support any activity which may impede military operations, military
exercises, training
during military operations or exercises or the
preparation for military operations or exercises or during military
training.”
91
Regulation
73 provides – “The Board shall consist of five independent
persons appointed by the Minister.”
92
Section
34 of the Constitution provides – “Everyone has the right to
have any dispute that can be resolved by the application
of law
decided in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum.”
93
See
para above.