1 SANDU I, II and III, to Adopt the Way Counsel Referred to Them, Are Appeals in Respect

1 SANDU I, II and III, to Adopt the Way Counsel Referred to Them, Are Appeals in Respect

1

REPUBLIC OF SOUTH AFRICA

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

REPORTABLE

IN THE MATTERS BETWEEN

Case Number : 306 / 05

SOUTH AFRICAN NATIONAL DEFENCE UNIONAPPELLANT

and

MINISTER OF DEFENCEFIRST RESPONDENT

THE SECRETARY OF DEFENCESECOND RESPONDENT

THE CHIEF OF THE SOUTH AFRICAN NATIONAL DEFENCE FORCETHIRD RESPONDENT

MR P MOLOTO, THE ACTING CHAIRPERSON

OF THE MILITARY BARGAINING COUNCILFOURTH RESPONDENT

AND

Case Number : 004/05

MINISTER OF DEFENCEFIRSTAPPELLANT

THE SECRETARY OF DEFENCESECOND APPELLANT

THE CHIEF OF THE SOUTH AFRICAN NATIONAL DEFENCE FORCETHIRDAPPELLANT

and

SOUTH AFRICAN NATIONAL DEFENCE UNIONFIRST RESPONDENT

PIETER OERSONSECOND RESPONDENT

LESETJA MACK MALEMELATHIRD RESPONDENT

Coram :MPATI DP, CAMERON, NUGENT, CONRADIE and JAFTA JJA

Date of hearing :8, 9 and 10 MAY 2006

Date of delivery :31 AUGUST 2006

SUMMARY

Military labour relations – whether legally enforceable duty on South African National Defence Force as employer to bargain collectively with military trade union– if such a duty whether the employer unfairly refused to bargain– whether military trade union entitled to interdict to prevent restructuring of defence force pending decision by Military Arbitration Board

Neutral citation: This judgment may be referred to as:

Sandu & v Minister of Defence & Others [2006] SCA 90 (RSA)

______

J U D G M E N T

______

CONRADIE JA

[1]SANDU I, II and III, to adopt the way counsel referred to them,are appeals in respect of separate applications for relief brought beforethree different judges in the Pretoria High Court. In each case the parties were the South African National Defence Union (SANDU), a military trade union, and the Minister of Defence representing the South African National Defence Force (SANDF) as well as other persons who were joined by virtue of their interest in the subject matter of the application. In SANDU I the decision by Van der Westhuizen J, reported as South African National Defence Union v Minister of Defence and Others,[1] went against SANDU. It is the appellant in respect of that application.The decisions in the other two applications, before Smit J[2] and Bertelsman J, went in favour of SANDU. The SANDF is the appellant in those matters. All appellants are before us by leave of the courtsa quo.

[2]The appeals were not consolidated but were heard together because of a dispute that is common to them all: whether there is a legally enforceable duty on the SANDF to engage in collective bargaining with SANDU, a military trade union that was recently permitted to function as such by the decision of the Constitutional Court in South African National Defence Union v Minister of Defence and Another.[3] A second issue in SANDU I is whether, assuming there to have been a duty to bargain, the SANDF unfairly refused to bargain with SANDU.

[3]In SANDU III interdicts were granted against the continued implementation by the SANDF of a plan for the restructuring of the defence force on the footing that it had a duty to bargain with SANDU and was not entitled to implement the plan until it had done so or at least until the Military Arbitration Board had pronounced upon the matter. Apart from the appealability of the orders, their propriety in the circumstances is considered. In SANDU II there are issues concerning the constitutional validity of regulations made in terms of the Defence Act 42 of 2002pursuant to the Constitutional Court decision referred to. Theyare considered in a judgment by my brother Nugent.

[4]In support of its contention that the SANDF is legally obliged to engage in collective bargaining with it, SANDU relies in the first place on s 23 of the Bill of Rights in the Constitution, more particularly on ss (5):

'LABOUR RELATIONS

23(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).'

[5]The expression 'right to engage in collective bargaining' in ss (5) is open to more than one interpretation. It may mean that the contemplated national legislation to regulate collective bargaining must provide for an employer or a union called upon to bargain to comply with the demand on pain of being ordered to do so. On the other hand it may mean that the envisaged national legislation must provide the framework within which employers, employers' organisations and employees may bargain;or it may mean no more than that no legislative or other governmental act may effectively prohibit collective bargaining.

[6]Interpretive guidance to provisions of the Bill of Rights is given in s 39. First and foremost, its provisions must be interpreted to promote the values that underlie an open and democratic society based on human dignity, equality and freedom. Having read a provision in that light a court, tribunal or forum must consider international law and may consider foreign law.[4]Section 233 of the Constitution dictates the form that a consideration of international law must take:

‘233 When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.’

In his contribution to the Bill of Rights Compendiumedited by Mokgoro and Tlakula, Andreas O’Shea under the title ‘International Law and the Bill of Rights’ (page 7A-1) expresses the following view:[5]

‘The international character of the norms in the Bill of Rights cannot be over emphasised and in certain respects international law will inevitably have a greater impact on the interpretation of the Bill of Rights that it will on ordinary legislation.’ (page 7A-8)

Section 39(2) of the Constitution requires a court in interpreting any legislation to promote the spirit, purport and objects of the Bill of Rights. That means that legislation regarding military labour rights must be interpreted to reflect international labour rights, norms and values.

[7]There is much in international law that is helpful in interpreting s 23(5) of the Constitution, starting with the Freedom of Association and Protection of the Right to Organise Convention, 1948, a convention of the International Labour Organisation, ratified by South Africa on 19 February 1996. I cite only those articles that appear to me to be relevant:

'Article 2

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

Article 3

1Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

2The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

Article 5

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.

Article 8

1In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.

2The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.

Article 9

1The 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.

2. . . . . '

[8]InSouth African National Defence Union v Minister of Defence and Another[6] the Constitutional Court relied in part on the 1948 Convention for its conclusion that the expression 'worker' in the Constitution includes a member of the armed forces. Article 5 of the 1948 Convention exempts this category of worker from its provisions[7] with the result thatnational legislation might exclude workers of this kind from the protection of the Convention without offending against it. The Constitutional Court, in reviewing the historical denial of labour rights for black workers, concludedthat labour rights were considered by the framers of the Constitution to be so important that s 126B(1)[8] of the Defence Act 44 1957,[9] nevertheless had to be struck down. This meant that, leaving aside possible restrictions on their exercise - the legitimacy of which was, subject to compliance with s 36, recognized by the Constitutional Court – military ‘workers’ were now, as far as organizational rights went, in the same position as workers in the civilian sector.

[9]The International Labour Organisationconvention on the right to organise was supplemented a year later by The Right to Organise and Collective Bargaining Convention 1949. The text of articles 3, 4 and 5 is important:

'Article 3

Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.

Article 4

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

Article 5

1.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.

2...... '

[10]A distinct preference for voluntarism, for a system that functions without reliance on a legally enforceable right to bargain, emerges from these provisions, one that is reinforced by the Collective Bargaining Convention, 1981.The relevant articles of the 1981 Convention are 1, 2 5 and 6:

'Article 1

1.This Convention applies to all branches of economic activity.

2.The extent to which the guarantees provided for in this Convention apply to the armed forces and the police may be determined by national laws or regulations or national practice.

3.As regards the public service, special modalities of application of this Convention may be fixed by national laws or regulations or national practice.

Article 2

For the purpose of this Convention the term collective bargaining extends to all negotiations which take place between an employer, a group of employers or one or more employers' organisations, on the one hand, and one or more workers' organisations, on the other, for--

(a)determining working conditions and terms of employment; and/or

(b)regulating relations between employers and workers; and/or

(c)regulating relations between employers or their organisations and a workers' organisation or workers' organisations.

Article 5

1.Measures adapted to national conditions shall be taken to promote collective bargaining.

2.The aims of the measures referred to in paragraph 1 of this Article shall be the following:

(a)collective bargaining should be made possible for all employers and all groups of workers in the branches of activity covered by this Convention;

(b)collective bargaining should be progressively extended to all matters covered by subparagraphs (a), (b) and (c) of Article 2 of this Convention;

(c)the establishment of rules of procedure agreed between employers' and workers' organisations should be encouraged;

(d)collective bargaining should not be hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules;

(e)bodies and procedures for the settlement of labour disputes should be so conceived as to contribute to the promotion of collective bargaining.

Article 6

The provisions of this Convention do not preclude the operation of industrial relations systems in which collective bargaining takes place within the framework of conciliation and/or arbitration machinery or institutions, in which machinery or institutions the parties to the collective bargaining process voluntarily participate.'

[11]The voluntarist approach that emerges from these international instruments hascharacterized our labour dispensation since its liberalization with the amendments to the Industrial Conciliation Act 1956 when, following upon the recommendations of the Wiehahn Commission, all workers were in 1979 permitted to organise and to strike. Voluntarism does not mean that employers and employeesnecessarily negotiate voluntarily. Often they negotiatein order to avert the economic pressures brought about by a strike or a lock-out. This pressureis one of the principal driving forces behind the voluntarist system.[10]

[12]The Constitutional Court highlighted the role of industrial action in the first certification judgment, In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC), in the following passage:

'It is correct that collective bargaining implies a right on the part of those who engage in collective bargaining to exercise economic power against their adversaries. However CP [Constitutional Principle] XXVIII does not require that the NT [New Text] expressly recognise any particular mechanism for the exercise of economic power on behalf of workers or employers: it suffices that the right to bargain collectively is specifically protected. Once a right to bargain collectively is recognised, implicit within it will be the right to exercise some economic power against partners in collective bargaining. The nature and extent of that right need not be determined now.'

[13]In Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others[11] at para 391 the Chief Justice discusses the propriety of having regard to the legislative history of an enactment that does not reveal its meaning sufficiently clearly. He refers to his own decision in S v Makwanyane 1995 (3) SA 391 (CC) and after commenting that, while it is not clear whether the majority of the court concurred in the finding, at least none dissented from it, he expresses his continued adherence to the conclusion that 'where the background material is clear, is not in dispute, and is relevant to showing why particular provisions were or were not included in the Constitution, it can be taken into account by a Court in interpreting the Constitution.'

[14]An important part of the Constitution's legislative history is the interim Constitution of 1993 which entrenched labour rights in s 27:-

'27(1)Every person shall have the right to fair labour practices;

(2)Workers shall have the right to form and join trade unions, and employers

shall have the right to form and join employers' organizations.

(3)Workers and employers shall have the right to organise and bargain

collectively.

(4)Workers shall have the right to strike for the purpose of collective

bargaining.

(5)Employers' recourse to the lock-out for the purpose of collective bargaining shall not be impaired, subject to section 33(1).'

[15]Subsection (4) tied the right to strike directly to ‘collective bargaining’. This right was given to workers as a means of enforcing the right to ‘bargain collectively’ in ss (3). In addition, of course, workers had the right, by striking, to secure an outcome to any demand whether or not the parties had (inconclusively) bargained about it.

Any disagreement about collective bargaining was considered as a dispute of interest: that is why workers were permitted to strike about it. Like every other 'interest' in the labour relations field (as opposed to a justiciable dispute of right), collective bargaining had to be secured by negotiation prompted by the threat of collective action.In the classic dispute of interest case the parties have no right to enforce; they attempt to establish a right, in the final resort by coercive economic action. Allowing workers to strike 'for the purpose of collective bargaining', firmly puts collective bargaining into the category of interest disputes, excluding any right tojudicially obliged collective bargaining.[12]

[16]Van der Westhuizen J in SANDU I, drawing heavily on Brassey and Cooper in Chaskalson and Others, Constitutional Law of South Africa 30-30, was prepared to accept that the wording of the 1996 Constitution was deliberately drafted to differ from the wording of the Interim Constitution in order to convey a change in meaning. I do not agree with the statement by Brassey and Cooper that the 'right to engage' in collective bargaining in the final Constitution differs significantly from the right under the interim Constitution which gave workers and employers the 'right' to bargain collectively.They are closer to the mark when they acknowledge that '[T]he distinction between the right to collective bargaining and the right to 'engage' in collective bargaining is a fine one.'If the drafters of the interim Constitution intended to build on what the authors call 'the collective bargaining achievements arising from the industrial court's unfair labour practice regime' and the Constitution then intended to break this edifice down again, it is not likely that its framers would have sought to achieve such a major departure from the previous provision by the use of language differing so slightly from that of its predecessor. I must say that I fail to detect a change of meaning in the change of expression. I suspect that in refining and expanding s 27 of the Interim Constitution, it was decided touse the expression 'collective bargaining' which is not only used inconventions of the International Labour Organisation butis more familiar to and better understood by labour lawyers than the expression 'bargain collectively' which, while it may mean the same, is not labour law parlance.

[17]The primary objects of the Labour Relations Act 66 of 1995 (the LRA) adopted to give effect to s 27 of the interim Constitution are stated in s 1:

‘(a)to give effect to and regulate the fundamental rights conferred by

section 27 of the Constitution;

(b)to give effect to the obligations incurred by the Republic as a

member state of the International Labour Organisation;

(c)to provide a framework within which employees and their trade unions,

employers and employers' organisations can -

(i)collectively bargain to determine wages, terms and conditions of

employment and other matters of mutual interest; and

(ii)and formulate industrial policy; and

(d)to promote --

(i)orderly collective bargaining;

(ii)collective bargaining at sectoral level;

(iii)employee participation in decision-making in the work-place; and