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[2011] ZACC 21
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South African Police Service v Police and Prisons Civil Rights Union and Another (CCT 89/10) [2011] ZACC 21; [2011] 9 BLLR 831 (CC); 2011 (9) BCLR 992 (CC); 2011 (6) SA 1 (CC); (2011) 32 ILJ 1603 (CC) (9 June 2011)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 89/10
[2011] ZACC 21
In the matter between:
SOUTH AFRICAN POLICE
SERVICE
...............................................................
Applicant
and
POLICE AND PRISONS CIVIL RIGHTS
UNION
..................................
First
Respondent
ZIZAMELE
CEBEKHULU
...................................................................
Second
Respondent
Heard on : 1 March 2011
Decided on : 9 June 2011
JUDGMENT
NKABINDE J:
Introduction
This is an application for leave to appeal against the decision of
the Labour Appeal Court
1
upholding a decision of the Labour Court,
2
that only
members
of the South African Police Service (SAPS)
employed under the South African Police Service Act
3
(SAPS Act) are engaged in an
essential service
under the
Labour Relations Act
4
(LRA). The relevant provisions of the LRA were interpreted by the
Labour Appeal Court to exclude non-members employed by the
SAPS
under the Public Service Act
5
(PSA). At issue is thus whether employees of the SAPS who are
employed under the PSA are, in the contemplation of the LRA, engaged
in an essential service. A determination of this issue turns on the
proper meaning of
essential service
as defined in section 213
read with sections 65(1)(d)(i) and 71(10) of the LRA.
The dispute arose in
the context of the 2007 national general public service strike in
which employees of the SAPS – some
employed under the SAPS Act
and others under the PSA – including members of the Police and
Prisons Civil Rights Union (POPCRU),
participated.
Parties
The applicant, the
SAPS, employs approximately 163 000 employees. Of these, about
129 000 are functional police officers
who perform duties to
combat and prevent crime, while about 33 000 perform support
functions. These support functions include
employees working in
call centres (who support operational police officers), employees in
the Community Service Centres (first
port of call for reporting
crimes), administration clerks, employees in supply chain management
performing functions such as
ordering vehicles, and employees
engaged in general support services including finance and human
resources.
The first respondent,
POPCRU, is a registered trade union in terms of the provisions of
the LRA comprising of approximately 109 500
members within the
SAPS. Together with the South African Policing Union (SAPU), it is
recognised by and supports the rights
of some of the employees of
the SAPS. The second respondent is
Mr
Zizamele Cebekhulu, the President
of POPCRU.
Brief factual
background
The state and trade
unions in the Public Service Co-ordinating Bargaining Council,
including the Congress of South African Trade
Unions, to which
POPCRU is affiliated, had been engaged in negotiations to determine
the wage increase for employees in the public
service. A national
general public service strike involving several trade unions
6
ensued in June 2007 after the wage dispute reached a deadlock. The
leadership of POPCRU expressed an intention to call on its
members
to go on a strike. As a result, the applicant lodged an urgent
application in the Labour Court against the members of
POPCRU, who
included members and non-member employees of the SAPS, interdicting
them from embarking on a strike.
Labour
Court proceedings
The applicant
contended that both the functional police officers employed under
the SAPS Act, and the non-member personnel employed
under the PSA,
were prohibited from striking. The SAPS argued that it is an
essential service as defined in section 213 read
with section 71(10)
of the LRA. In essence, the SAPS argued that all its employees
render an essential service and are prohibited
from striking.
7
The respondents contended that only members
–
either appointed in terms of the SAPS Act or appointed under a
different law and deemed to be members by the Minister for Police
(Minister)
8
in terms of section 29 of the SAPS Act – are prohibited from
striking.
9
The Labour Court
interdicted POPCRU from encouraging its members, excluding
non-member personnel of the SAPS, to participate in
the strike.
10
It held that the provisions of the SAPS Act indicate that only
members are prohibited from striking.
11
Therefore, the Court held, not all employees of the SAPS render an
essential service and are prohibited “from embarking
on a
strike action.”
12
The applicant, having been granted leave to appeal by the Labour
Court, appealed against the latter’s decision to the
Labour
Appeal Court.
Proceedings
in the Labour Appeal Court
The issue for
determination in the Labour Appeal Court was whether the
“designation of the [SAPS] as an essential service
in terms of
section 71(10) of the [LRA] prohibits all of the personnel of the
[SAPS] from participating in a strike”, or
only members as
defined in the SAPS Act.
13
The Labour Appeal Court determined, first, the concept of essential
service in relation to the word “engaged” and,
second,
the meaning to be ascribed to the word “engaged”.
14
With regard to the first issue, the Court stated that what this
concept conveys is “the functions that the body . . .
performs
. . . that constitute the
essential service
and it is the
persons who are
engaged
in these functions who are not
permitted to take part in a strike”.
15
The Court held that
essential service
in section 65(1)(d)(i) must be understood
as the policing functions of the SAPS as set out in the Constitution
and spelled out
in the SAPS Act.
16
The Court held that the SAPS Act itself distinguishes between
employee
and
member
and that, with the power of the
Minister to designate employees as members, each constitutes a
distinct category of employees
of the SAPS.
17
It held that the word “engaged” in the provision
applies to those employed under the SAPS Act, including those deemed
to be members by ministerial decree in terms of section 29 of the
SAPS Act.
18
The Court held that “[a]ll the functions set out in s 13 of
the SAPS Act can . . . only be performed by those employees
of the
SAPS who are
members
of the SAPS.”
19
It held that while employees under the PSA serve an important
support function, they cannot be deemed to render an
essential
service
, and are therefore not prohibited from striking.
20
The Court therefore dismissed the appeal. The applicant then
applied directly to this Court for leave to appeal.
In this Court
The applicant sought
leave to appeal against the decision of the Labour Appeal Court. It
had also sought leave to introduce further
evidence but this
application was abandoned.
Broadly, the
applicant contended that the SAPS is a single integrated essential
service as defined in section 213 of the LRA.
21
It maintained therefore that all its employees are engaged in an
essential service. It argued that the Labour Appeal Court,
in
interpreting the phrase “engaged in”, failed to have
regard to the text of sections 71(10)
22
and 213. The applicant contended that the interpretation by the
Labour Appeal Court placed too much emphasis on the distinction
between members in terms of the SAPS Act and personnel appointed
under the PSA. It submitted that all functions within the SAPS
are
critical for effective crime prevention, and that the operational
members employed under the SAPS Act would be unable to
perform their
functions effectively without the support of the non-member
personnel employed under the PSA.
The applicant advanced five reasons why the SAPS should be viewed as
a single, integrated essential service. First, section
199 of the
Constitution refers to a “single police force”. Second,
the constitution of the Safety and Security Sectoral
Bargaining
Council, which regulates bargaining in the SAPS, does not make a
distinction. Third, the contracts of service of
the non-member
personnel appointed under the PSA indicate that they are part of the
SAPS. Fourth, the treasury allocation to
the SAPS makes no
distinction. Finally, the Annual Human Resource Plan reflects that
the workforce of the SAPS is made up of
both members and non-member
personnel.
The respondents took
issue with the applicant’s approach and interpretation. They
contended that the applicant’s
construction finds no support
on a textual basis in the LRA, the SAPS Act, or the Explanatory
Memorandum.
23
The respondents argued that the interpretation contended for by the
applicant, if accepted, will limit extensively the PSA employees’
right to strike in terms of section 23(2)(c) of the Constitution.
The limitation, they submitted, cannot be justified under
the
Constitution. Finally
, they submitted
that the applicant’s construction is over-inclusive and thus
in violation of principles adopted by the
International Labour
Organisation (ILO).
Leave to appeal
When deciding whether
leave to appeal should be granted, two issues arise: the first is
whether the case raises a constitutional
matter and, if so, the
second issue is whether it is in the interests of justice to grant
leave.
The issue in this case concerns the proper meaning of essential
service as defined in section 213 read with sections 65(1)(d)(i)
and
71(10) of the LRA, within the context of the right to strike in
section 23(2)(c) of the Constitution. As its preamble illustrates,
the interpretation of the LRA must be firmly rooted in the
Constitution. This Court, in
NEHAWU v University of Cape Town
and Others
24
(
NEHAWU
),
held that the proper interpretation of
the LRA raises a constitutional issue.
25
There can be no doubt, therefore, that this case raises a
constitutional issue. The next question is whether it is in the
interests
of justice to grant leave to appeal.
An important consideration relevant to the interests of justice is
the nature and importance of the constitutional issue at stake.
26
Fundamentally, the interpretation and application of the provisions
concerned have implications for the many PSA employees’
right
to strike. There is little doubt that strikes within the public
service will continue to occur. Additionally, this is
the first
occasion on which this Court adjudicates on the meaning of essential
service. The SAPS owes a duty to the public in
relation to their
safety and security. If the duty is not discharged, other
entrenched rights might be affected adversely
27
because violence occasionally takes place during strike action. It
is thus in the public interest for this Court to pronounce
on this
matter. In all these circumstances, it is in the interests of
justice to grant leave to appeal.
Before I consider the
meaning of essential service, it is necessary to discuss briefly the
constitutional and statutory framework
to evaluate properly the
correctness of the construction of the relevant provisions contended
for by the parties.
Constitutional and statutory framework
Section 23(1) and (2)
of the Constitution confers upon every worker the right to strike.
It provides that:
“
(1) Everyone has the
right to fair labour practices.
(2) Every worker has the right—
to form and join a trade union;
to participate in the
activities and programmes of a trade union; and
to strike.”
The importance of the
right to strike,
28
a “component of a successful collective bargaining system”,
29
was stressed by this Court in
In re: Certification of the
Constitution of the Republic of South Africa, 1996
.
30
The Court stated:
“
Workers exercise
collective power primarily through the mechanism of strike action.
In theory, employers, on the other hand, may
exercise power against
workers through a range of weapons, such as dismissal, the employment
of alternative or replacement labour,
the unilateral implementation
of new terms and conditions of employment, and the exclusion of
workers from the workplace . . .
. The importance of the right to
strike for workers has led to it being far more frequently entrenched
in constitutions as a fundamental
right than is the right to lock
out.”
31
(Footnote omitted.)
The LRA was enacted,
among other things, to regulate the right to strike in conformity
with the Constitution.
32
While the LRA confers upon every employee the right to strike,
33
it also imposes limitations on this right. Section 65(1)(d)(i)
provides that “[n]o person may take part in a strike .
. . if
. . . that person is engaged in an
essential service
”.
34
The SAPS Act prohibits members of the SAPS from striking or
inducing any other member to strike. It empowers the National or
Provincial Commissioner to discharge summarily from the SAPS any
member who strikes or conspires with another to strike.
35
It follows therefore that the right to strike, albeit accorded
constitutional protection, is not absolute.
Section 213 of the LRA elaborates further on this limitation and
defines essential service
as―
“
(a) a service the
interruption of which endangers the life, personal safety or health
of the whole or any part of the population;
(b) the Parliamentary service;
(c) the South African Police
Services”.
Section 71(10) of the LRA
states that “[t]he Parliamentary service and the [SAPS] shall
be deemed to have been designated
an essential service in terms of
this section.”
The Constitution
provides for the establishment, structuring and conduct of security
services.
36
It further provides that “[t]he security services of the
Republic consist of . . . a single police service . . . established
in terms of the Constitution.” It requires that the “security
services must be structured and regulated by national
legislation”,
37
and that:
“
The security services
must act, and must teach and require their
members
to act,
in accordance with the Constitution
and the law, including
customary international law and international agreements binding on
the Republic.”
38
(Emphasis added.)
Section 205 of the
Constitution deals specifically with the “Police service”.
Section 205(2) states that “[n]ational
legislation must
establish the powers and functions of the police service and must
enable the police service to discharge its
responsibilities
effectively”. Section 205(3) provides that “[t]he
objects of the police service are to prevent,
combat and investigate
crime, to maintain public order, to protect and secure the
inhabitants of the Republic and their property,
and to uphold and
enforce the law.”
The relevant
provisions of the SAPS Act are these: section 1 defines the members
of the force; section 5 elaborates on the establishment
and
composition of the SAPS; section 13 deals with certain powers,
duties and functions of the members of the SAPS; section 29
empowers
the Minister to designate further categories of employees in the
SAPS as members; and section 41 prohibits members from
striking.
The SAPS was
established and structured in terms of section 5 of the SAPS Act.
39
This section makes it quite clear that the SAPS consists only of
members
. Section 5 provides that:
“
(1) The South African
Police Service contemplated in section 214(1) of the [interim]
Constitution is hereby established.
(2) The Service shall consist
of—
all persons who immediately
before the commencement of this Act were
members
―
of a force which, by virtue of
section 236(7)(a) of the [interim] Constitution, is deemed to
constitute part of the Service;
appointed under the
Rationalisation Proclamation;
of the Reserve by virtue of
section 12(2)(k) of the Rationalisation Proclamation;
members
appointed in
terms of section 28(2) of this Act;
persons who become
members
of the Reserve under section 48(2) of this Act; and
members
appointed to the
Directorate for Priority Crime Investigation established by section
17C.” (Emphasis added.)
Section 1 of the SAPS
Act defines
member
to mean―
“
any
member
of the
Service referred to in section 5(2),
including―
except for the purposes of any
provision of this Act in respect of which the National Commissioner
may otherwise prescribe, any
member
of the Reserve while such
member
is on duty in the Service;
any temporary
member
while employed in the Service;
any person appointed in terms
of any other law to serve in the Service and in respect of whom the
Minister has prescribed that
he or she be deemed to be a
member
of the Service for the purposes of this Act; and
any
person designated under section 29 as a
member
”.
(Emphasis added.)
Section 13 of the
SAPS Act deals with the powers, duties and functions of
members
of the SAPS. It is quite clear that they are entrusted with
specific policing functions. The relevant parts of section 13 read
as follows:
“
(1) Subject to the
Constitution and with due regard to the fundamental rights of every
person, a
member
may exercise such powers and shall perform
such duties and functions as are by law conferred on or assigned to a
police official
.
(2) Where a
member
becomes aware that a prescribed offence has been committed, he or she
shall inform his or her commanding officer thereof as soon
as
possible.
(3)
(a) A
member
who is
obliged to perform an official duty, shall, with due regard to his or
her powers, duties and functions, perform such duty
in a manner that
is reasonable in the circumstances.
(b) Where a
member
who
performs an official duty is authorised by law to use force, he or
she may use only the minimum force which is reasonable in
the
circumstances.
(4) Every
member
shall be
competent to serve or execute any summons, warrant or other process
whether directed to him or her or to any other
member
.
(5) Any
member
may in
general or in any particular instance be required to act as a
prosecutor, or in any other respect to appear on behalf of
the State
in any criminal matter before any magistrate’s court, any
magistrate holding a preparatory examination, a court
of a special
justice of the peace or any other lower court in the Republic.
(6) Any
member
may, where
it is reasonably necessary for the purposes of control over the
illegal movement of people or goods across the borders
of the
Republic, without a warrant search any person, premises, other place,
vehicle, vessel or aircraft . . . and seize anything
found . . .
which may lawfully be seized.” (Emphasis added.)
It is noteworthy that
neither section 5(2) nor section 13(1) – which refer to
“members” and to a “member”
or a “police
official” respectively – mention “personnel
employed” or non-members in the SAPS. It is also
important to point out that non-members may be designated as members
of
the SAPS by the Minister in terms of section 29. Section 29
provides:
“
(1) The Minister may by
notice in the
Gazette
designate categories of
personnel
employed
on a permanent basis
in the Service and who are not
members, as members.
(2)
Personnel designated as
members
under subsection (1),
shall be deemed to be members
appointed to posts in the fixed establishment of the Service under
section 28(2) with effect from a date determined by the Minister
in
the notice concerned: Provided that a person who is a member of a
category of personnel so designated who does not, within one
month of
such designation, consent thereto and, if applicable, consent as
required by section 212(7)(b) of the Constitution, to
having the
retirement age applicable to him or her on 1 October 1993 changed as
a result of such designation, shall not be affected
by such notice.”
(Emphasis added.)
Interpretive
approach
In determining the proper meaning of
essential service
as
defined in section 213, it is important first to consider the
principles applicable to the proper interpretation of statutes.
Section 39(2) of the Constitution enjoins every court, tribunal or
forum, when interpreting any legislation, to “promote
the
spirit, purport and objects of the Bill of Rights.”
40
The interpretive process in conformity with the Constitution is
limited to what the texts of the provisions in question are
reasonably capable of meaning.
41
In order to ascertain
the meaning of essential service, regard must be had to the purpose
of the legislation and the context in
which the phrase appears. An
important purpose of the LRA is to give effect to the right to
strike entrenched in section 23(2)(c)
of the Constitution. The
interpretative process must give effect to this purpose within the
other purposes of the LRA as set
out in section 1(a).
42
The provisions in question must thus not be construed in isolation,
but in the context of the other provisions in the LRA and
the SAPS
Act.
43
For this reason, a restrictive interpretation of essential service
must, if possible, be adopted so as to avoid impermissibly
limiting
the right to strike.
44
Were legislation to define essential service too broadly, this
would impermissibly limit the right to strike.
45
It is against this
background that the meaning of essential service must be determined.
Meaning
of ‘essential service’
Essential service is
defined in section 213 to include “the South African Police
Services”. The LRA does not however
define the SAPS. The
Legislature must, therefore, have intended that the SAPS would bear
the meaning assigned to it in the SAPS
Act, including sections 1 and
5(2).
Section 5(2) provides
that “[t]he Service shall consist of . . . all persons who . .
. were
members
. . . of a force . . .
members
appointed in terms of section 28(2) . . . persons who become
members
of the Reserve . . . and
members
appointed to the
Directorate”.
46
Section 1 of the SAPS Act in turn defines a “member” to
mean “any member of the Service referred to in section
5(2)”
and it includes “any person designated under section 29 as a
member”. Significantly, persons who may
be designated under
section 29 include “personnel employed on a permanent basis in
the Service and who are not members”.
The applicant
contended that the SAPS as a whole should be viewed as “a
single police service” in terms of section
199 of the
Constitution. That construction assimilates all the employees of
the SAPS together and applies essential service
to the entire
entity. This cannot be correct. The fact that section 199
contemplates “a single police service”
does not mean
that everybody employed in the SAPS is, without more, a
member
of the SAPS.
The applicant argued
that the language used in sections 71(10) and 213 is unambiguous and
is meant to encompass all 163 000
employees. It was further
contended that employees must be understood to include
members
of the SAPS as well as non-members, namely the PSA employees who
have not been designated as
members
of the SAPS. The
difficulty with this contention is that it construes the provisions
relied on in isolation. In addition, it
construes essential service
over-broadly.
There are other
considerations which further highlight the difficulty with the
applicant’s interpretation. Section
38(1)
of the SAPS Act implies a distinction between
members
and “other employee[s] of the Service”
.
47
Section 41(1) of the SAPS Act is significant. Consistently with
section 65(1)(d)(i) of the LRA that limits the right to strike
by
those engaged in an essential service, section 41(1) provides that
“[n]o
member
shall strike, induce any other member to
strike or conspire with another person to strike.”
48
Sections 41(1) and 65(1)(d)(i) imply that non-members and those not
“engaged in an essential service”, respectively,
are not
statutorily prohibited from striking. It is inconceivable that the
non-member employees, who have not been designated
and deemed to be
members
in terms of section 29 of the SAPS Act, can perform
duties and functions contemplated in section 13 of the SAPS Act
49
and section 205(3) of the Constitution,
50
which, strictly speaking, are generally “assigned to a police
official”, as contemplated in section 13(1).
The Labour Appeal
Court aptly pointed out that:
“
Those employed by the
SAPS either under the SAPS Act or the PSA are so employed by design
and not by any accidental process. That
there is a deliberate and
calculated intention to differentiate between the two categories of
employees is fortified by the fact
that . . . the Minister of Safety
and Security is empowered in terms of s 29(1) and (2) of the SAPS Act
to designate personnel
employed under the PSA deeming them to be
members
for the purposes of the SAPS Act.”
51
(Footnote omitted.)
Notably,
the Minister exercised his powers in terms of section 29(1) in May
1996 and February 1999 and designated a number of categories
of
personnel employed under the PSA and deemed them as
members
of
the SAPS.
52
The applicant’s
contention, that the existence of certain facts or events
53
that took place after the SAPS Act was enacted supports the
construction of the term essential service, can be dealt with
briefly.
I fail to see how events that happened outside Parliament,
presumably on the basis of an understanding of the phrase essential
service by some or other entity, can constitute a guide to the
interpretation of the term with which we are concerned in this
case.
Remarkably, as stated
earlier, neither section 5(2) nor section 13(1) of the SAPS Act
mention the “personnel employed”
or non-members in the
SAPS. I conclude that persons who are engaged in an essential
service, and who are hit by the essential
service strike prohibition
in terms of section 65(1)(d)(i) of the LRA, are members of the
police force. They include the “personnel
employed” in
the SAPS who have been designated as
members
in terms of
section 29 of the SAPS Act. The interpretation the SAPS contended
for cannot therefore be upheld.
Conclusion
In all the
circumstances, the Labour Appeal Court cannot be faulted in holding
that not all SAPS employees are engaged in an essential
service and
that the interpretation sought by the SAPS is incorrect.
Costs
Neither the applicant
nor the respondents seek costs. In the circumstances, I will make
no order as to costs.
Order
In the event, the
following order is made:
(a) The application for
leave to appeal is granted.
(b) The appeal is
dismissed.
(c) There is no order as
to costs.
Ngcobo CJ, Moseneke
DCJ, Cameron J, Froneman J, Jafta J, Mogoeng J,
Mthiyane AJ, Van der Westhuizen J
and Yacoob J
concur in the judgment of Nkabinde J.
For the Applicant:
Advocate GJ Marcus SC and Advocate K Pillay instructed by Bowman
Gilfillan Inc.
For the
Respondents:
Advocate JG van der Riet SC and Advocate H Barnes instructed by
Allardyce and Partners.
1
South African Police Service v Police and Prisons Civil Rights
Union
and Another
[2010] 12 BLLR 1263
(LAC) (Labour
Appeal Court Judgment).
2
South African Police Service v Police and Prisons Civil Rights
Union and Others
, Labour Court, Case No J1444/2007, 22 June
2007, unreported (Labour Court Judgment).
3
68 of 1995.
4
66 of 1995.
5
103 of 1994.
6
These unions include the Public Servants Association of South
Africa, Health and Other Service Personnel Trade Union of South
Africa, National Union of Public Service and Allied Workers,
National Teachers’ Union, Public and Allied Workers Union
of
South Africa, National Professional Teachers’ Organisation of
South Africa, SA Onderwysersunie, acting jointly with
NAPTOSA,
Professional Educator’s Union, acting jointly with SAPU, and
United National Public Servants Association of South
Africa and
Allied Workers Union, acting jointly with the Public Servants
Association of South Africa.
7
Labour Court Judgment above n 2 at para 18.
8
The Minister for Police was previously referred to as the Minister
for Safety and Security as defined in section 1 of the SAPS
Act.
9
Labour Court Judgment above n 2 at paras 19-22.
10
Id at para 30.
11
Id at para 25. The Court referred to Regulation 20(y) of the SAPS
Act which provides that an
employee
will be guilty of
misconduct if he or she “participates in any unlawful labour
or industrial action”.
12
Labour Court Judgment above n 2 at para 26.
13
Labour Appeal Court Judgment above n 1 at para 1.
14
Id at para 7.
15
Id at para 8.
16
Id at para 19.
17
Id at para 16.
18
Id at para 19.
19
Id at para 15.
20
Id at para 19.
21
Section 213 is set out in full at below.
22
Section 71(10) is set out in full at below.
23
Ministerial Legal Task Team “Explanatory Memorandum”
(1995) 16 (1)
Industrial Law Journal
278.
This memorandum
sought to “highlight the main innovations in the draft [Labour
Relations] Bill on a chapter by chapter
basis, and . . . set out
both the content of these innovations and the thinking underlying
them.”
24
[2002] ZACC 27
;
2003 (2) BCLR 154
(CC);
2003 (3) SA 1
(CC). In that
case reference was made to section 27 of the interim Constitution.
This section is the equivalent of section
23 of the Constitution.
25
Id at para 14.
26
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (8) BCLR
771
(CC);
2002 (5) SA 401
(CC) at para 14. See also
NU
M
SA
and Others v Bader Bop (Pty) Ltd and Another
[2002] ZACC 30
;
2003 (2) BCLR 182
(CC);
2003 (3) SA 513
(CC) (
Bader Bop
) at
para 16.
27
For example, the right to freedom and security of person entrenched
in section 12 of the Constitution might be affected.
28
The right to strike is also recognised as a fundamental right in
both international and regional instruments. Article 8(1)(d)
of the
International Covenant on Economic, Social and Cultural Rights, 6
ILM
360 (1967) (the Covenant) states “[t]he State
Parties to the present Covenant undertake to ensure: . . . [t]he
right to
strike, provided that it is exercised in conformity with
the laws of the particular country.” The Covenant was adopted
on 16 December 1966 and came into force on 3 January 1976. South
Africa signed the Covenant on 3 October 1994 but has not yet
ratified it. Article 4(e)(i) of the Southern African Development
Community (SADC) Charter of Fundamental Social Rights, adopted
on 26
August 2003 and came into force on the same day,
http://www.sadc.int/index/browse/page/171
, accessed on 1 June
2011, which states:
“
Member States shall create an enabling
environment consistent with ILO Conventions on freedom of
association, the right to organise
and collective bargaining so
that:
(e) the right to resort to collective action in the
event of a dispute remaining unresolved shall:
(i) for workers, include the right to strike and to
traditional collective bargaining”.
29
Bader Bop
above n 26 at para 13.
30
[1996] ZACC 26
;
1996 (10) BCLR 1253
(CC);
1996 (4) SA 744
(CC).
31
Id at para 66.
32
The long title and section 1 of the LRA refer to section 27 of the
interim Constitution. The corresponding provision in the
Constitution is section 23.
33
Section 64(1)(a) provides:
“
Every employee has the right to strike and every
employer has recourse to lock-out if—
(b) the issue in dispute has been referred to a council
or to the Commission as required by this Act”.
34
Section 65(1)(d)(i) of the LRA provides:
“
No person may take part in a
strike
or a
lock-out
or in any conduct in contemplation or furtherance of
a
strike
or a
lock-out
if—
(d) that person is engaged in—
an
essential service
”.
35
Section 41(1), (2) and (3) of the SAPS Act provides:
“
(1) No member shall strike, induce any other
member to strike or conspire with another person to strike.
(2) If the National or Provincial Commissioner has
reason to believe that a member is striking or conspiring with
another person
to strike, the Commissioner concerned may, in a
manner which is reasonable in the circumstances, issue an ultimatum
to the member
concerned to terminate or desist from carrying out
such conduct within the period specified in such ultimatum.
(3) In the event that the member refuses or fails to
comply with the ultimatum referred to in subsection (2), or if the
National
or Provincial Commissioner could not reasonably be expected
to issue such an ultimatum to a member personally, the Commissioner
concerned may, without a hearing, summarily discharge such member
from the Service: Provided that—
(a) such member shall as soon as
practicable after the date of such discharge, be notified in writing
of such discharge and the
reasons therefor;
(b) such member may, within 30 days
after the date of receipt of such notice, make written
representations to the Minister regarding
the revocation of the
discharge; and
(c) the Minister may, after having
considered any representations, reinstate such member from the date
of such discharge.”
36
See section 199 of the Constitution. The corresponding provision in
the interim Constitution was section 214 that required legislation
for the establishment and regulation of the SAPS “which shall
be structured at both national and provincial levels and
shall
function under the direction of the national government as well as
the various provincial governments.”
37
Section 199(4).
38
Section 199(5).
39
Although the LRA was assented to on
29 November
1995, it came into operation more than a year later on 11
November 1996, while the SAPS Act, assented to on 2
8
September 1995, came into operation on 15 October 1995.
40
Section 39 provides in relevant part:
“
(1) When interpreting the Bill of Rights, a
court, tribunal or forum—
must
promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
must
consider international law; and
may
consider foreign law.
(2) 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.”
See also
section 3 of the LRA which imposes an obligation on any person
applying that Act to interpret its provisions—
“
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law
obligations of the
Republic
.”
41
See
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (1)
BCLR 39
(CC);
2000 (2) SA 1
(CC) at para 24;
South African Police
Service v Public Servant
s
Association
[2006]
ZACC 18
;
2007 (3) SA 521
(CC) at para 20;
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others
:
In re
:
Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2000 (10) BCLR 1079
(CC);
2001 (1) SA 545
(CC)
(
Hyundai
) at paras 21-6;
and
Minister of Safety and Security v Sekhoto
and Another
2011 (1) SACR 315
(SCA) at para 15.
42
Section 1(a) provides:
“
The purpose of
this
Act
is to
advance economic development, social justice, labour peace and the
democratisation of the workplace by fulfilling the primary
objects
of the Act, which are―
to
give effect to and regulate the fundamental rights conferred by
section 27 of the Constitution”. (Footnote omitted.)
43
First National Bank of SA Limited t/a Wesbank v Commissioner for
the South African Revenue Services and Another; First National
Bank
of SA Limited t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (7) BCLR 702
(CC);
2002 (4) SA 768
(CC) at para 49.
44
See
NEHAWU
above n 24 at para 41; and
Equity Aviation
Services (Pty) Ltd v Commission for Conciliation
, Mediation
and Arbitration and Others
[2008] ZACC 16
;
2009 (2) BCLR 111
(CC);
2009 (1) SA 390
(CC) at para 34. See also
Hyundai
above
n 41 at para 21.
45
According to the Report on the International Labour Conference 81
st
Session 1994
Freedom of Association and Collective Bargaining
at
69-70 para 159, the ILO adopts a restrictive interpretation of
“essential services” to avoid limiting the right
to
strike. This is because “[t]he principle whereby the right to
strike may be limited or even prohibited in essential
services would
lose all meaning if national legislation defined these services in
too broad a manner”, as the applicant
does.
46
Emphasis added.
47
Section 38 of the SAPS Act provides:
“
(1) If a member or other employee of the Service
is reported missing, such member or employee shall for all purposes
be deemed
to be still employed by the Service until—
(a) the National or Provincial Commissioner otherwise
determines;
(b) he or she again reports for duty; or
(c) a competent court issues an order whereby the death
of such member or employee is presumed.
(2) The salary or wages and allowances accruing to a
member or employee during his or her absence contemplated in
subsection (1)
shall, subject to subsection (4), be paid—
(a) to his or her spouse; or
(b) if he or she has no spouse, to his or her
dependants; or
(c) to any other person who, in the opinion of the
Commissioner concerned, is competent to receive and administer such
salary
or wages and allowances on behalf of the member or employee
or his or her spouse or such other dependants.
(3) Payment of any salary or wages
and allowances in terms of subsection (2) shall for all purposes be
deemed to be payment thereof
to the member or employee concerned.
(4) Notwithstanding subsection (2),
the National or Provincial Commissioner may from time to time direct
that only a portion of
the salary or wages and allowances of a
member or employee be paid in terms of the said subsection or that
no portion thereof
be so paid.”
48
Emphasis added.
49
F
or example, to
serve or execute summons
,
warrant
s
or other process
es,
act as prosecutors and appear in the lower courts
,
and conduct searches without warrants and seize assets
.
50
“To prevent, combat and investigate crime, to maintain public
order, to protect and secure the inhabitants of the Republic
and
their property, and to uphold and enforce the law”.
51
Labour Appeal Court Judgment above n 1 at para 16.
52
Government Gazette
17221 GN R888, 24 May 1996 as amended by
Government Gazette
17228 GN R914, 31 May 1996 and
Government
Gazette
19775 GN R248, 26 February 1999.
53
As set out in above.