CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 137/19
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH, WESTERN CAPE Applicant
and
A R COETZEE AND 49 OTHERS First to Fiftieth Respondents
UNIVERSITY OF CAPE TOWN Fifty First Respondent
UNIVERSITY OF STELLENBOSCH Fifty Second Respondent
MINISTER OF HEALTH Fifty Third Respondent
MINISTER OF PUBLIC SERVICE AND
ADMINISTRATION Fifty Fourth Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Fifty Fifth Respondent
D I K WILSON N.O. Fifty Sixth Respondent
Neutral citation: MEC for Health, Western Cape v Coetzee and Others [2020]
ZACC 3
Coram: Khampepe ADCJ, Froneman J, Jafta J, Madlanga J, Majiedt J,
Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
Judgment: Mathopo AJ (unanimous)
2
Heard on: 14 November 2019
Decided on: 20 March 2020
Summary: Labour Relations Act 66 of 1995 — Public Service Act 103
of 1994 — definition of public service — Public Health and Social
Development Sectoral Bargaining Council — scare skills
allowance
ORDER
On appeal from the Labour Appeal Court (hearing an appeal from the Labour Court) ,
the following order is made:
1. The application for leave to appeal is dismissed.
2. The Member of the Executive Council for Health, Western Cape must pay
the costs of the first to fiftieth respondents in this Court.
JUDGMENT
MATHOPO AJ (Khampepe ADCJ, Froneman J, Jafta J, Madlanga J, Majiedt J,
Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring):
Introduction
[1] This is an application for leave to appeal against the judgment and order of the
Labour Appeal Court dismissing an appeal by the applicant, the Member of the
Executive Council for Health, Western Cape (applicant). The central issue in this
MATHOPO AJ
2
application is whether the first to fiftieth respondents (respondents),1 who are health
professionals, are entitled to receive a scarce skills allowance in terms of the scarce
skills agreement (agreement), a collective agreement concluded within the registered
scope of the Public Health and Welfare Sector Bargaining Council (Bargaining
Council). 2 The Bargaining Council is a sectoral bargaining council established by the
Public Service Co -ordinating Bargaining Council (PSCBC) in terms of section 37 of
the Labour Relations Act (LRA).3
Factual background
[2] It is convenient to commence with a brief description of the position of the
respondents and the relevant agreement s which governed their position and later deal
with the legislative provisions which form the core of this appeal.
The teaching hospital agreements
[3] The matter has its origins in 1967 and 1975 when the University of Cape Town
(UCT) and Stellenbosch University (collectively, the Universities) each respectively
concluded teaching hospital agreements (teaching agreements) with the erstwhile
Provincial Administration of the Cape of Good Hope (the Provincial Administration ),
now the Department of Health, Western Cape (Department). In terms of these teaching
agreements, Groote Schuur Provincial Hospital would be used by UCT, and Tygerberg
Hospital by Stellenbosch University, as teaching hospitals for the training of their
respective faculties of medicine.
[4] The teaching agreements envisaged that the Universities and the Provincial
Administration would provide staff that would run the teaching hospita ls. The staff is
1 The remaining respondents, the fifty first to the fifty sixth respondents, played a limited role in the present matter.
In the course of this dispute which has spanned over more than fifteen years, a number of respondents have since
passed away or retired.
2 Now the Public Health and Social Development Sectoral Bargaining Council.
3 Act 66 of 1995.
MATHOPO AJ
3
collectively referred to as Joint Staff. 4 The respondents are all members of the Joint
Staff and are attached to the medical faculties of the respective Universities.
[5] Clause 9(a) of the UCT agreement provides that, unless otherwise agre ed, the
deans, deputy deans, professors and lecturers from the medical facult y, will be
appointed under the conditions of service of UCT. These are UCT employees. Clause
9(b) provides that the remaining members of the Joint Staff from the medical faculty
are appointed under the conditions of service of the Provincial Administration. These
are Provincial employees.
[6] In terms of c lause 10 of the UCT agreement, UCT shall be responsible for the
payment of salaries of their employees, and the Provincial Administrator shall be
responsible for the payment of the salaries of the Provincial employees.
Scarce skills agreement
[7] On 28 January 2004, the collective agreement was concluded at the Bargaining
Council.5 In terms of section 213 of the LRA, a collective agreement is an agreement
concerning terms and conditions of employment or any other matter of mutual interest
concluded by one or more registered trade unions, on the one hand, and (as far as it is
relevant) one or more employers, on the other hand.6
4 Clause 2 of the UCT agreement defines Joint Staff as the medical and other professional staff jointly responsible
to the University and the Provincial Administration in terms of the agreement and shall include all incumbents of
the categories of posts specified in clause 7 of the agreement. Reference will be made to specific clauses in the
UCT agreement, which is materially the same as the Stellenbosch University agreement.
5 Agreement No. 1 of 2004.
6 See also section 31 of the LRA which provides:
“Subject to the provisions of se ction 32 and the constitution of the bargaining council, a
collective agreement concluded in a bargaining council binds—
(a) the parties to the bargaining council who are also parties to the collective agreement;
(b) each party to the collective agreement and the members of every other party to the
collective agreement in so far as the provisions thereof apply to the relationship
between such a party and the members of such other party; and
(c) the members of a registered trade union that is a party to the collective agreement and
the employers who are members of a registered employers’ organisation that is such a
party, if the collective agreement regulates—
MATHOPO AJ
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[8] The agreement sought to provide a scarce skills allowance to health professionals
in public health sector hospitals or institutions as m anaged by health employers. The
allowance was initiated in order to attract and retain the services of skilled and
knowledgeable academic staff of the Universities. The scarce skills allowance was
negotiated in the Bargaining Council for the direct benefit of skilled employees such as
the respondents by the public health employers in order to retain the ir services which
are both clinical and administrative in nature , and highly beneficial to the health care
system in South Africa. This was done in an effort to encourage highly qu alified and
experienced health professionals, such as the respondents, to remain in the employment
of the State and not take up positions in private healthcare or elsewhere outside of South
Africa, resulting in the loss of people with skills regarded as scarce in this country.
[9] Clause 1 of the agreement lists the following objectives:
“1.1 To attract and retain health professionals with scarce skills on a full time basis
to the Public Health Sector as managed by the Health Employer;
1.2 To institute a non-perishable scarce skills allowance for designated health
professional categories working in clinical service delivery of Public Health
Sector hospitals / institutions and are not part of the Senior Management
Service;
. . .
1.5 To agree that the scarce skills allowance be a fixed percentage linked to the
annual salary notch.”
[10] The scope of the agreement is set out in clause 2. The agreement applies to the
employer and employees—
(i) terms and conditions of employment; or
(ii) the conduct of the employers in relation to their employees or the conduct of
the employees in relation to their employers.”
MATHOPO AJ
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“2.1 in the Public Health Sector as managed by the Health Employer, but excluding
those health professionals in other sectors; and
2.2 fall within the registered scope of the PH&WSBC.”
Legislative framework
Labour Relations Act
[11] Section 27 of the LRA envisages the establishment of bargaining councils.7
[12] Section 35 of the LRA provides that there will be a bargaining council for—
“(a) the public service as a whole, to be known as the Public Service Co-ordinating
Bargaining Council; and
(b) any sector within the public service that may be designated in terms of
section 37.”
[13] Section 37 of the LRA provides that the PSCBC may designate a sector of the
public service for the establishment of a bargaining council.
[14] Section 28 of the LRA sets out the powers and functions of bargaining councils
which include concluding and enforcing collective agreements within their registered
scope.
[15] Section 36(2) of the LRA provides:
“The Public Service Co-ordinating Bargaining Council may perform all the functions
of a bargaining council in respect of those matters that—
7 The relevant parts of section 27 of the LRA provide as follows:
“(1) One or more registered trade unions and one or more registered employers’
organisations may establish a bargaining council for a sector and area by—
(a) adopting a constitution that meets the requirements of section 30; and
(b) obtaining registration of the bargaining council in terms of section 29.
. . .
(4) A bargaining council may be established for more than one sector.”
MATHOPO AJ
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(a) are regulated by uniform rules, norms and standards that apply across
the public service; or
(b) apply to terms and conditions of service that apply to two or more
sectors; or
(c) are assigned to the State as employer in respect of the public service
that are not assigned to the State as employer in any sector.”
[16] Section 213 of the LRA defines public service as “the national departments,
provincial departments and government components contemplated in section 7(2) of the
Public Service Act” (PSA).8
Public Service Act
[17] Public service is defined in section 1 of the PSA as public service contemplated
in section 8.
[18] Section 8 of the PSA provides:
“(1) The public service shall consist of persons who are employed—
(a) in posts of the establishment of departments; and
(b) additional to the establishment of departments.
(2) Subject to the prescribed conditions, any person referred to in subsection (1)
may be employed permanently or temporarily and in a full -time or part -time
capacity.
(3) For the purpose of this Act, in relation to employment—
(a) the word ‘permanently’ or ‘permanent’, in respect of an employee,
means an employee to whom a retirement age referred to in section 16
applies; and
(b) the word ‘temporarily’ or ‘temporary’, in respect of an employee,
means not permanently employed.”
[19] Section 1 determines that “establishment” means the posts which have been
created for the normal and regular requirements of a department.
8 Act 103 of 1994.
MATHOPO AJ
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Litigation history
Bargaining Council
[20] On 13 June 2006, the respondents referred a dispute on their entitlement to the
scarce skills allowance, which they alleged they were deprived of by the Department ,
to the Bargaining Council for determination. At the conciliation proceedings, the
dispute was dismissed on the ground that the Bargaining Council did not have
jurisdiction to hear the matter as the respondents were employed by the Universities and
not by the Department. Aggrieved by this outcome, the respondents then approached
the Labour Court.
Labour Court I
[21] In the Labour Court, the parties agreed to a separation of the issues on the merits
and quantum. The issues on the merits involved the determination by the Labour Court
regarding which category of employees could benefit from the allowance provided for
in the agreement, by interpreting the relevant clauses of the agreement. The other issue
was whether the respondents were entitled to benefit from the agreement concluded in
the Bargaining Council , given that they were employed by the Universities and fell
outside the scope of the category of employees catere d for in the agreement . The
applicant adopted the stance , which it never abandoned througho ut the various stages
of litigation, that the respondents were not employees of the Department and fell outside
the registered scope of the Bargaining Council and were consequently not entitled to
the payment of the scarce skills allowance. The Labour Court, per Cheadle AJ, held
that on a literal interpretation of the different definitions of employee in the LRA and
the PSA, the registered scope of the PSCBC , and the scope and applicability of the
scarce skills agreement, the respondents were employees in the public service and were
entitled to the scarce skills allowance.9
9 Coetzee and Others v Member of the Executive Council for the Provincial Government for Health and Others,
unreported judgment of the L abour Court, Case No C751/08 (4 November 2010) (Labour Court judgment I ) at
para 53.
MATHOPO AJ
8
Labour Appeal Court I
[22] Dissatisfied with the outcome in the Labour Court, the applicant approached the
Labour Appeal Court. The Labour Appeal Court upheld the appeal and set aside the
orders of the Labour Court . It held that the Labour Court did not have the requisite
jurisdiction in terms of the LRA to adjudicate the matter.10
Labour Court II
[23] Accordingly, the respondents brought an application in terms of
section 158(1)(g) of the LRA before the Labour Court to review the decision of the
Bargaining Council not having jurisdiction to adjudicate on issues that the respondent
brought before it.11 The Labour Court accordingly set aside the ruling and remitted the
matter to the Bargaining Council for arbitration .12 However, the parties subsequently
agreed to refer the matter to the Commission for Conciliation, Mediation and
Arbitration (CCMA).
CCMA
[24] Two claims were referred to the CCMA . First, the demarcation dispute which
related to whether the respondents fell within the jurisdiction of the Bargaining Council.
Second, the dispute relating to the interpretation and application of the agreement. The
disputes were consolidated and the Commissi oner found that the respondents were
employees within the public service and f ell within the jurisdiction of the Bargaining
Council. Consequently, the respondents were entitled to the scar ce skills allowance
provided for in the agreement.
10 Member of the Executive of Western Cape Provincial Health Department v Coetzee [2015] ZALAC 35; (2015)
36 ILJ 3010 (LAC) at paras 92-4 and 101.1.
11 Coetzee and Others v The Public Health and Development Sectoral Bargaining Council and Others, unreported
judgment of the Labour Court, Case No C819/15 (12 July 2016) at para 1.
12 Id at para 14.
MATHOPO AJ
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Labour Court III
[25] The applicant then applied to the Labour Court to review the Commissioner’s
award. This application was dismissed on 30 November 2017. Leave to appeal was
refused by the Labour Court and only granted on petition by the Labour Appeal Court.
Labour Appeal Court II
[26] In its judgment dated 3 May 2018, the Labour Appeal Court upheld the CCMA’s
findings, which were confirmed by the Labour Court , that the respondents were
employees as defined by section 213 of the LRA. 13 It held that this section broad ly
defined an employee which made it possible for persons like the respondents to be
employees in circumstances where they work for one institution but are paid by
another.14
[27] On the issue whether the respondents were employees who fell within the
registered scope of the Bargaining Council, the L abour Appeal Court held that the
registered scope of the Bargaining Council is the public service. It considered the
definition of public service in section 213 of the LRA read together with section 7(2) of
the PSA and schedules 1 and 2 of the PSA, and found that because the Universities were
not listed in the PSA schedules, the respondents were not in the public service.15
[28] However, having found them to be employees in terms of section 213 of the
LRA, the Labour Appeal Court then considered whether the respondents formed part of
the public service by virtue of the teaching agreements. In arriving at its decision it
found that the respondents were employees who h eld posts on the fixed establishment
and that the special contra ctual provisions left no doubt that the Principal and Chief
Specialist positions were posts “which had been created for the normal and regular
requirements” of the relevant hospital departments. Thus, the respondents were part of
13 The MEC for the Department of Health, Western Cape v Coetzee and Others, unreported judgment of the Labour
Appeal Court, Case No CA5/18 (3 May 2018) (Labour Appeal Court judgment II) at para 71.
14 Id at para 59.
15 Id at para 62.
MATHOPO AJ
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the fixed establishment a s defined in section 1 of the PSA. 16 It further held that these
posts were central to the functioning of a teaching hospital and included clinical
responsibilities on the incumbents. 17 In dismissing the applicant’s appeal, the L abour
Appeal Court concluded that the respondents were thus both employees of the
Universities and in the public service, falling within the registered scope of the
Bargaining Council.18
In this Court
Jurisdiction
[29] For this Court’s jurisdiction to be engaged , the matter must either raise a
constitutional issue19 or an arguable point of law of general public importance which
calls out for this Court’s attention.20
[30] The applicant argued that this matter raises both a constitutional issue and an
arguable point of l aw of general public importa nce. In relation to the former, it
submitted that the LRA regulates and gives practical effect to the fundamental rights
conferred by section 23 of the Constitution. In so doing, it provides a framework within
which employees, employers and their respective representatives can , inter alia ,
collectively bargain to determine the terms and conditions of employment and other
matters of mutual interest. In support of its contention it further relied on this Court’s
decision in NEHAWU,21 where Ngcobo J said:
“Therefore the proper interpretation and application of the LRA will raise a
constitutional issue. This is because the legislature is under an obligation to respect,
16 Id at paras 63 and 68.
17 Id at para 68.
18 Id.
19 Section 167(3)(b)(i). Section 167(7) of the Constitution provides that “a constitutional m atter includes any
issue involving the interpretation, protection or enforcement of the Constitution”.
20 See section 167(3)(b)(ii) of the Constitution and also General Council of the Bar of South Africa v Jiba [2019]
ZACC 23; 2019 (8) BCLR 919 (CC) at para 35.
21 National Education Health and Allied Workers Union v University of Cape Town [2002] ZACC 27; 2003 (3)
SA 1 (CC); 2003 (2) BCLR 154 (CC) (NEHAWU).
MATHOPO AJ
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protect, promote and fulfil the rights in the Bill of Rights. In many cases, constitutional
rights can be honoured effectively only if legislation is enacted. Such legislation will
of course always be subject to constitutional scrutiny to ensure that it is not inconsistent
with the Constitution. Where the legislature enacts legislation in the effort to meet its
constitutional obligations, and does so within constitutional limits, courts must give
full effect to the legislative purpose. Moreover, the proper interpretation of such
legislation will ensure the protection, promotion and fulfilment of constitutional rights
and such will be a constitutional matter. In this way, the courts and the legislature act
in partnership to give life to constitutional rights.”22
[31] The applicant maintained that the CCMA award upheld by the Labour Courts
was based on a material error of law which incorrectly interpret ed sections 28, 35, 36,
37 and 43 of the LRA, read with the definition of the t erm “public service” in
section 213 of the LRA and the applicable provisions of the PSA.
[32] At the hearing, counsel for the respondents agreed that in light of NEHAWU, this
Court’s jurisdiction is engaged on the basis that all labour matters whi ch involve the
interpretation and application of the various provisions of the LRA engage this Court’s
jurisdiction.
[33] As already stated above, when this matter reached the CCMA, there wa s a
consolidation of two disputes. First, the demarcation dispute which related to whether
the respondents fall under th e jurisdiction of the Bargaining Council . Second, the
interpretation dispute which related to the interpretation and application of the
agreement.
[34] During the hearing, the applicant argued that the application before this Court
was a challenge to both the demarcation and interpretation disputes. The applicant
relied on the CCMA award to validate the assertion, in that the Commissioner dealt with
these two matters in an intertwined manner in granting the award.23
22 Id at para 14.
23 In particular, reliance was placed by the applicant on paragraphs 56-69 of the CCMA award.
MATHOPO AJ
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[35] This matter requires th is Court to determine whether the CCMA correctly
interpreted and applied the definitions of “employees” and “public service” as per
section 21 3 of the LRA . Allied to this is whether the respondents fell within the
registered scope of the Bargaining Council. The interpretation and application of the
provisions of the LRA therefore raise constitutional issues. In my view the demarcation
and the interpretation disputes are heavily intertwined, and cannot now be separated as
the respondents suggest.
[36] The LRA g ives practical effect to, and regulates , the fundamental rights
conferred by section 23 of the Consti tution.24 In NEHAWU, this Court held that the
proper interpretation and application of the LRA – which is a constitutionally mandated
piece of legislation – is in itself a constitutional matter and therefore engages this
Court’s jurisdiction. 25 It was further held that “[o]ur constitutional democracy
24 Section 23 of the Constitution 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).”
25 NEHAWU above n 21 at para 14. See also National Union of Metalworkers of South Africa v Bader Bop (Pty)
Ltd [2002] ZACC 30; 2003 (3) SA 513 (CC); 2003 (2) BCLR 182 (CC) at para 20, where this Court confirmed
its jurisdiction in labour matters by stating that it would be shirking its constitutional duty if it were to hold that it
would never hear appeals from the Labour Appeal Court . In my view, so too in the present matter this Court
would be shirking its constitutional duty if it were to not engage i n the debate as to whether the Labour C ourts
properly interpreted and applied the LRA. This constitutional duty would still, however, need to be viewed against
NEHAWU at para 18, where this Court stated that “[t]his does not mean that this Court will as a matter of course
MATHOPO AJ
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envisages the development of a coherent system of law that is shaped by the
Constitution”.26
[37] Another issue that engages this Court’s jurisdiction is whether the CCMA ’s
award was based on a material error of law which incorrectly interpreted sections 28,
35, 36, 37 and 43 of the LRA, read with the definition of the term “public service” in
section 213 of the LRA. Although n ot squarely pleaded or raised as such during oral
argument in this Court, in essence the attack by the applicant was directed at the
reasonableness of the award and the Labour Court’s endorsement of the interpretation
and application of the provisions of the LRA . Properly construed, this amounts to an
argument that a reasonable adjudicator would not have come to the same legal
conclusion. This Court has confirmed in Duncanmec that “the challenge of an award
based on unreasonableness was regarded as raising a constitutional issue”.27
Interests of justice
[38] The next enquiry is whether the interests of justice warrant that leave be granted.
This enquiry involves the exercise of discretion on the part of this Court and entails the
weighing up of various factors which include the reasonable prospects of success which,
although not determinative, carries more weight than the other factors.28
hear appeals against decisions of the L abour Appeal Court dealing with the interpretation and application of the
LRA.” Every case is to be adjudicated on its own jurisdictional merits and the interests of justice will in any event
dictate whether this Court should grant leave to appeal.
26 NEHAWU id at para 16.
27 Duncanmec (Pty) Ltd v Gaylard N.O. [2018] ZACC 29; 2018 (6) SA 335 (CC); 2018 (11) BCLR 1335 (CC) at
para 30. See also South African Revenue Service v Commission for Conciliation, Mediation and Arbitration
[2016] ZACC 38; 2017 (1) SA 549 (CC); 2017 (2) BCLR 241 (CC) at para 30.
28 The other factors that are relevant in determining whether it is in the interests of justice to grant leave to appeal
to the Constitutional Court include:
(a) The i mportance of the issue raised (see in this regard Islamic Unity Convention v Independent
Broadcasting Authority [2002] ZACC 3 ; 2002 (4) SA 294 (CC); 2002 (5) BCLR 433 (CC) (Islamic
Unity) at para 15 and Member of the Executive Council for Development Planning and Local
Government, Gauteng v Democratic Party [1998] ZACC 9; 1998 (4) SA 1157 (CC); 1998 (7) BCLR 855
(CC) at para 32); and
(b) The public interest in a determination of the constitutional issues raised (see in this regard Khumalo v
Holomisa [2002] ZACC 12 ; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 14 and Islamic
Unity at para 18).
MATHOPO AJ
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[39] The primary question is whether this Court should grant the applicant leave to
appeal the deci sion of the L abour Appeal Court. To answer this question, a
determination has to be made whether the Labour Courts and arbitral tribunals which
found in favour of the respondents were wrong in dismissing the applicant’s case both
on review and appeal.
[40] Having considered the parties’ submissions and for the reasons that follow, I am
of the view that it is n ot in the interests of justice to grant leave to appeal. In what
follows hereunder, I will demonstrate that the application lacks reasonable prospects of
success. It is trite that the prospects of success of an application are an important factor
in this Court’s determination of whether it is in the interests of justice to grant leave to
appeal.29
Submissions on prospects of success
Applicant
[41] The applicant put up a spirited criticism of the findings of the CCMA which were
endorsed by the Labour Court and Labour Appeal Court. It first sought to persuade us
that the respondents are not members of any trade unions which were signatories to the
agreement, but instead are members of the South African Medical Association (SAMA).
It contended that since SAMA was not a party to the impugned agreement, the
29 In S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 12, this Court held:
“A finding that a matter is a constitutional issue is not decisive. Leave may be refused if it is
not in the interests of justice that the Court should hear the appeal. The decision to grant or
refuse leave is a matter for the discretion of the Court, and in deciding whether or not to grant
leave, the interests of justice remain fundamental. In considering the inte rests of justice,
prospects of success, although not the only factor, are obviously an important aspect of the
enquiry. An applicant who seeks leave to appeal must ordinarily show that there are reasonable
prospects that this Court will reverse or materially alter the decision of the S upreme Court of
Appeal.”
See also S v Pennington [1997] ZACC 10; 1997 (4) SA 1076 (CC) ; 1997 (10) BCLR 1413 (CC) at
para 26, where this Court held:
“‘Leave to appeal ’ is also a requirement needed to ‘ protect’ the process of this Court against
abuse by appeals which have no merit, and it is in the ‘interests of justice’ that this requirement
be imposed, for if appeals without merit were allowed against decisions of the Supreme Court
of Appeal, justice would be delayed.”
MATHOPO AJ
15
respondents are not covered by the provisions of section 23(1) of the LRA which states
that a collective agreement binds members of trade union s which are parties to a
collective agreement.
[42] Second, it contended that the respondents fell outside the registered scope of the
Bargaining Council because they are not public servants, and are accordingly not
entitled to the benefits of a collective agreement. It argued that t he fact that the
respondents performed some of their duties in the provincial hospitals and provide d
healthcare on behalf of the Department, does not necessarily mean that they are public
servants or that they are employed in the public service. The applicant also contended
that teaching hospitals cannot transform the respondents into public service employees
when in fact they are employees of the Universities. It submitted that since the
respondents hold posts as professors and lecturers in the faculties of medicine in their
respective Universities, they had concluded employment contracts with the Universities
and none of them were appointed in terms of written contracts concluded with the
Department. The agreement is not applicable to persons not in the public service. In
essence, the submission made was that nothing in the PSA or its Regulations30
prescribes that the geographic location at which a person performs their duties
determines whether they are in the public service or not.
[43] The third main contention relates to the CCMA’s finding that the respondents
occupy posts which are firmly established and have been so for many years and that
these posts are governed by Part B of section 1 of the PSA. 31 To this main argument
there were two strands. First, the applicant contended that only provincial employees
serving on the Joint Staff at the teaching hospitals hold posts on the fixed establishment
and the respondents are not. Second, the respondents failed to adduce evidence before
all the Labour Courts and arbitral tribunals that they hold or held posts on the fixed
establishment. Thus, the finding of the CCMA constitutes a material irregularity.
30 Public Service Regulations, GN R1 GG 21951, 5 January 2001.
31 CCMA award at para 62.
MATHOPO AJ
16
[44] Finally, the applicant argued that the Labour Appeal Court was wrong to endorse
the CCMA award, where the Commissioner found that the respondents did not allege
that they held posts on the fixed establishment and consequently failed to lead evidence
to substantiate the averment. The applicant further argued that the Labour Appeal Court
disregarded various sections of the LRA and a number of other important legislative
enactments which, it contended, yields unfair results towards the applicant in that it
imposed a liability on the Department where in law, no such liability exists. We were
urged to accept that if the respondents had pleaded this averment, the applicant would
have traversed this issue at that stage. It was emphasised that the respondents were
appointed by the Universities and subject to the terms and conditions of service of their
respective Universities.
The respondents
[45] The counter argument by the respondents was that the allowance was specifically
negotiated for persons in their positions and the agreement binds the applicant by virtue
of the fact that their trade union, SAMA, was party to the Bargaining Council. This,
they said, was due to the fact that t he collective agreement was negotiated by SAMA
and the Democratic Nursing Organisation of South Africa (DENOSA) acting jointly for
and on behalf of the respondents. The respondents further contended that the agreement
was concluded for their benefit and for the benefit of similarly situated colleagues in
the other provinces.32
[46] The respondents further argued that they are entitled to the allowance because
they hold posts of Principal and Chief Specialists at the relevant public hospitals at the
time the agreement was concluded. They, therefore, fall within the express scope of the
agreement as they are “desi gnated health professionals working in public sector
hospitals”. The high water mark of the respondents’ argument was that the wording of
32 These are colleagues who had received the allowance in accordance with the Circular of the National Acting
Director-General of the Department, dated 11 February 2004, distributed to all heads of provincial departments
of health, instructing them to make payment to the Principal and Chief Specialists.
MATHOPO AJ
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the agreement is clear and unambiguously indicates that the allowance is to be paid by
the provincial departments of health to all Principal and Chief Specialists without
exception.
[47] To buttress their argument, the respondents relied on the Labour Court judgment
I, per Cheadle AJ, where he said:
“It is uncontested that the applicants occupy posts on the joint staffing e stablishment
of the hospitals. Professors Coetzee and James for example are classified as Chief
Specialists, a post in the Public Service Staffing System, and as such the head of their
respective departments with responsibility for managing and supervisin g staff, both
provincially and university appointed in their department. The fact that they also
occupy the post of Professor on the University establishment does not alter the fact that
they occupy a post on the establishment of the hospitals and therefore the Province.”33
[48] Addressing the applicant’s contention that the respondents held no posts on the
fixed establishment, the respondents submitted that had the issue been placed in dispute
on the pleadings , further e vidence would have been adduced t o gainsay it. They
contended that it is prejudicial for the applicant to ambush them on appeal with this new
ground. They averred that “a party cannot direct the attention of the other party to one
issue then at the trial (or at a subsequent appeal) atte mpt to canvass another, especially
if that causes prejudice to the other”. I now look at these arguments closely.
Analysis
The respondents are members of a signatory trade union
[49] The submission that the respondents were not covered by the provisions of th e
LRA because they were not members of any of the trade unions who were signatories
to the impugned agreement is flawed. While it is correct that they were not members
of any signatory trade union to the agreement, the respondents were members of SAMA.
Clause 7.2 of the constitution of the Bargaining Council permits two unions to be
33 Labour Court judgment I above n 9 at para 48.
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admitted as a single party to the Bargaining Council provided their aggregate
membership meets the threshold.34 Accordingly, SAMA and DENOSA entered into an
agreement in terms of which both unions agreed to be admitted jointly as a single party
to the Bargaining Council. In my view, the respondents are members of the registered
trade union which is a party to the agreement concluded in the Bargaining Council.
Interpretation of the agreement
[50] It is clear from the wording of the agreement that the scarce skills allowance was
negotiated for the direct benefit of the respondents. The Circular from the chief
negotiator of the Department also confirms that the text, conte xt and pur pose of the
agreement was negotiated specifically for the medical specialists employed in the public
sector, in this instance, the respondents. The respondents employed their scarce skills
in rendering clinical services in the public health sector for the benefit of the
Department. The latter undertook liability in terms of the agreement for the payment
of the scarce skills allowance. The impugned agreement sought to compensate them by
way of an additional 15% on the basic remuneration for the ir part of the work. This
additional allowance was agreed to separately from, long after, and in addition to the
teaching agreements. T o my mind , the sole and dominant purpose was to attract and
retain principal and specialist practitioners, who are considered a rare commodity in the
field of medicine, such as the respondents. 35 This was to enable them to render their
specialist clinical services using their scarce clinical skills in the public health sector for
the benefit of members of disadvantaged communities within the provincial hospitals
catchment area to whom the Department owes service delivery.
[51] For the above mentioned reasons, it is clear that the impugned agreement
granting the scarce skills allowance binds the applicant (as the employer) and the three
registered trade unions on behalf of their members in the Bargaining Council which
include DENOSA and SAMA. Clause 3 of the agreement identified medical specialists
34 Clause 7.2 further requires that each constituent of the combined trade union party, on its own or acting together
(as a single party), is admitted to a Sectoral Council.
35 See [9].
MATHOPO AJ
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as being part of the occupational group designated to be paid the allowance. The
respondents performed the duties of Principal and Chief Specialists in the various
medical departments within the provincial hospitals on behalf of the applicant and
therefore qualified for the payment of the scarce skills allowance.
The respondents’ employment status
[52] The applicant initially denied that the respondents were employees of the
Department and later changed and averred that “at the very least [they] were co -
employees of the Department”. The undisputed evidence before Cheadle AJ reveal s
that the respondents are employees of the Department on the fixed establishment and
thus qualif y to be characterised as public servants. It is common cause that besides
being professors at the Universities, the respondents were also Principal and Chief
Specialists in various fields of medicine rendering clinical services for the Department
and public hospitals for the benefit of the public. The Labour Appeal Court correctly
found that—
“[o]ne of the aims of the teaching hospital agreements is to bring the professors into
the public service in appropriate posts to give them authority to provide clinical services
to the public and to subjec t them to direct governmental control and accountability in
relation to the provision of those services. If such were not posts on the fixed
establishment of the public hospitals, then one must ask why the system of joint
appointment was established by the teaching hospital agreements in the first place.”36
[53] If the applicant was inclined to dispute this , it ought to have led evidence to
disprove the respondents’ case. This issue was neither raised before the CCMA nor
before the Labour Courts. Another fact or which militates against the applicant is its
admission that the respondents were departmental employees, albeit jointly with the
Universities. As a matter of common sense and logic, as a health sector employer and
with the respondents assisting it in the fulfilment of its obligations to the broader public,
it follows ineluctably that the respondents were employed in the health sector.
36 Labour Appeal Court judgment II above n 13 at para 66.
MATHOPO AJ
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[54] To demonstrate the fallacy in the applicant’s case, one has to have regard to the
chronology of the dispute between the parties which shows that at no point was it ever
in contention between the parties that the respondents occupied positions on the fixed
establishment of the Department or public service.37 The contention that the onus was
on the respondent s to raise that point is equally unsustainable. In my view, if the
Department held a contrary view, it should have s pecifically raised this issue. It was
incumbent upon the applicant to specifically provide evidence to support its assertion ,
which it failed to do.
[55] Clause 6 of the UCT agreement provides that the Joint Staff shall be employed
to serve jointly the University and the Provincial Administration. This clause
demonstrates that the Principal and Chief Specialist posts are posts which have been
created for the n ormal and regular requirements of the relevant hospital departments
and are part of the fixed establishment as defined by section 1 of the PSA. It follows
that the respondents are employees of the University and in the public service, and they
fall within the registered scope of the Bargaining Council and the collective agreement
applies to them. Thus, they are entitled to have the scarce skills allowance payable to
them under clause 3.
The Commissioner’s alleged material error of law
[56] In order to succeed with a review on this ground before the Labour Appeal Court,
the applicant had to show that the alleged error of law committed by the Commissioner
was one which no reasonable Commissioner would have made. The applicant
contended that the award by the Commissioner is based on a material error of law which
incorrectly interprets sections 28, 33, 35, 37 and 43 of the LRA. It argued that the award
fails to take into account that : (a) the respondents are not public servants ; (b) the
respondents fall outside the scope of the Bargaining Council; and (c) the award imposes
37 In Kali v Incorporated General Insurances Limited 1976 SA 179 (D) at 182A it was held that “[a] party cannot
direct the attention of the other party to one issue and then, at trial [or at a subsequent appeal] attempt to canvass
another.”
MATHOPO AJ
21
a liability or obligation which in law does not exist. It relied on the Labour Appeal
Court’s decision in Vermooten.38 In Vermooten an individual had entered into a
consultancy agreement with the government and was regarded as an independent
contractor and not an employee of the government department. 39 The facts in
Vermooten are clearly distinguishable from the facts in issue before this Court and the
applicant’s reliance on it is clearly misplaced.
[57] Section 28 of the LRA provides that a bargaining council may only exercise the
powers and functions entrusted by the section in relation to its registered scope. In other
words, the contention advanced is that since the respondents do not fall within the scope
of the Bargaining Council, the CCMA committed a material irregularity by conferring
on the Bargaining Council powers which it did not have in terms of the statute and the
constitution by which it was created. To reinforce this argument, the applicant relied
on the judgments of the Labour Appeal Court in DENOSA,40 MacDonald’s Transport
Upington (Pty) Ltd41 and NUMSA42 which held that the CCMA or a bargaining council
which wrongly interprets a legal instrument , commits a reviewable irregularity as
envisaged by section 145 of the LRA. This argument has no merit. I agree with the
respondents that this belated attempt to attack the Commissioner’s findings on the basis
that his award misinterpreted the provision s of section 28 is opportunistic and
constitutes a new argument which was not pleaded. Even if there was merit in this
contention, it would be prejudicial to the respondents for this Court to allow the
applicant’s belated attempt to introduce new issues which were not ventilated before
38 Vermooten v Department of Public Enterprises [2016] ZALAC 63; (2017) 28 ILJ 607 (LAC).
39 Id at para 4, where it was stated:
“The issue arose this way. The Department of Public Enterprise advertised a post for Director
[of] Aviation. The appellant applied for the post and was interviewed. During the interview,
he stated that he could not accept the remuneration that was offered. Later the Department of
Public Enterprise offered him a contract as Specialist Aviation Consultant for a period of
12 months with effect from 9 October 2006. Further contracts followed until March 2011 when
the DPE decided against renewing the contract.”
40 DENOSA v Western Cape Department of Health [2016] ZALAC 72; (2016) 37 ILJ 1819 (LAC) at paras 15-22.
41 MacDonald’s Transport Upington (Pty) Ltd v Association of Mineworkers and Constru ction Union [2016]
ZALAC 32; (2016) 37 ILJ 2593 (LAC).
42 National Union of Metalworkers of SA v Assign Services [2017] ZALAC 44; (2017) 38 ILJ 1978 (LAC) at para
32.
MATHOPO AJ
22
the Labour Courts. This clearly amounts to an improper attempt at making this Court a
court of first instance and is an ambush on the respondents.43
[58] There was sufficient evidence before the CCMA to justify its determination that
the respondents met the requirements of the agreement . This was done not only to the
extent that the agreement itself required them to be employed in the public sector, but
also to the extent that the respondents fell within the registered scope of the Bargaining
Council.
[59] I conclude that t here was no error of law or of fact as the decision of the
Commissioner took into account all the facts and evidence. He , inter alia, based his
decision on the admission by the National Department in the Circular which was
confirmed in evidence by Professor White that the collective agreement was concluded
for the benefit of the respondent s. His decision was fortified by the Labour Court, per
Cheadle AJ, and the Labour Appeal Court, per Murphy AJA, when they all found the
respondents to be public servants. The Commissioner applied his mind to all the
arguments and motivated his decision with sound reasons. Th e finding that the
respondents satisfied the requirements of the agreement cannot be faulted.
[60] It follows that the application lacks reasonable prospects of success and the
interests of justice thus militate against the granting of leave to appeal. There is no
reason why costs should not follow the outcome.
Order
[61] In the result, the following order is made:
1. The application for leave to appeal is dismissed.
2. The Member of the Executive Council for Health, Western Cape must pay
the costs of the first to fiftieth respondents in this Court.
43 See Tiekiedraai Eiendomme (Pty) Limited v Shell South Africa Marketing (Pty) Limited [2019] ZACC 14; 2019
JDR 0719 (CC); 2019 (7) BCLR 850 (CC) at para 20 , where it was held that “this Court functions better when it
is assisted by a well-reasoned judgment (or judgments) on the point in issue”.
For the Applicant:
For the Respondents:
A C Oosthuizen SC, B Joseph SC and N
Gallant instructed by the State Attorney,
Cape Town
R G L Stelzner SC instructed by
MacRobert Incorporated