Footing the (wage) bill: Reasoning, remedies, and National Education, Health and Allied Workers Union v Minister of Public Service and Administration (CC)

• Citation: (2024) 141 SALJ 169
• DOI: https://doi.org/10.47348/SALJ/v141/i1a8
• Published date: 13 February 2024
• Pages: 169-200
• Author: Winchester, J.
• Date: 13 February 2024

169

https://doi.org/10.47348/SALJ/v141/i1a8

FOOTING THE (WAGE) BILL: REASONING,

REMEDIES, AND NATIONAL EDUCATION,

HEALTH AND ALLIED WORKERS UNION

v MINISTER OF PUBLIC SERVICE AND

ADMINISTRATION (CC)*

JUSTIN WINCHESTER†

Bachelor of Civil Law candidate, Faculty of Law, University of Oxford

CATHERINE WILLIS-SMITH‡

Teaching Assistant, Department of Public Law, University of Cape Town

In NEHAWU & other s v Minister of Publ ic Service and Admi nistration &

others 2022 (6) BCLR 673 (CC), the ConstitutionalCourt declared invalid and

unenforceable a clause regulating the third payment period in a collective agreement

regulating periodic wage increases for public service employees.We do not take issue

with the court ’s ndings concer ning the validity of the impugned collective agreement.

However, we question the reasoning provided for the ‘just and equitable’ remedy

ordered. We nd the court ’s reasoning insuc ient in so far as it overlooked applica ble

principle s of corrective justice, the signi cance of the state being unjusti ably enriched

by labour peace by curtailing public servants’ right to strike, and the consequences

of its decision on the eectiveness of the delay-bar in preventing ill-motivated state

self-review. We propose the bifurcated approa ch that the court adopted in the A llPay

saga as a tool to adjudica te polycentric cases such as t he impugned case, as it enhance s

the judiciary’s proper place in the separation of powers and maximises remedial

possibilities for innocent third parties to state contracts. We conclude with what has

happened on the ground since this decision was reached.

Administrative law — AllPay — delay — ‘just and equitable’ remedy —

distr ibutive and corrective just ice

I INTRODUCTION

Lawyers care about doctrinal reasoning and the use of authority; lay

litigants truthfully only care about their remedy.1 It is thus crucial to

the legitimacy of courts that they are seen to dispense justice in the

eyes of the public, and to do so well. To that end, the Constitutional

* We are indebted to Simon Thompson for initiating and encouraging

our writing of this article and for his many hours of comment, critique and

conversation, without which this article would not have come to fruition.

We are also gr ateful to Leo Boonz aier and Nurina A lly for their ongoing supp ort

and incisive comments on earlier drafts, and to the anonymous peer reviewers

for their feedback. All er rors remain our own.

† BCom LLB (Cape Town).

‡ LLB LLM (Cape Town).

1 Michael Bishop ‘Remedies’ in Stu Woolman & Michael Bishop (eds)

Constitutional L aw of South Africa 2 ed (2013) 2.

(2024) 141 SALJ 169

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170(2 024) 141 THE SOUTH AFRIC AN LAW JOURNAL

https://doi.org/10.47348/SALJ/v141/i1a8

Court has recently won praise amongst lawyers and non-lawyers alike,

particularly when it has carefully considered the principles for remedying

void government contracts shrouded in polycentricity.2In particular,

the dedication of ‘an entire judgment to remedial decision-making’3 in

AllPay Consolidated Investment Holdings (Pty) Ltd v CEO of the South African

Social Security Agency (No 2)4(‘the AllPay remedy decision’) was said to be

‘laudable’5 and representative of ‘judicial creativity … on full display’.6

Aording the question of remedy equal and independent attention is

not only a new and refreshing approach7 but one that likely validates the

signicance of remedies to those who come before the courts seeking

them. Regrettably, National Education, Health and Allied Workers Union v

Minister of Public Service and Administration8 (‘the Wage Bill case’) compares

unfavourably against this praise.

Part II provides a summary of the focal case. It identies the core issues

and summarises the ndings of the Labour Appeal Court (‘LAC’) and

the Constitutional Court in respect of (a) the validity of the collective

agreement, ( b) the state’s delay in challen ging its val idity, and (c) the remedy

aorded to the par ties. Beyond setting out the LAC’s ndings in this part,

the remainder of this article focuses only on the Constitutional Court’s

judgment. We do not take issue with the Constitutional Court’s handling

of the rst issue but touch on problems arising from the second in part IV.

Part III critiques the court’s reasoning regarding the remedy it ordered. In

particular, we argue that the court lacked a healthy dose of state distrust

when fashioning a just and equitable remedy, which resulted in the court

providing con icting reasons for deny ing the relief sought by the applicant

unions — all of which were overly honoric to the state. In part IV, the

focus shif ts from what was said by the cou rt to what it ought to have said. We

take the phra se ‘just and equ itable’ to mean that the provision of a reme dy is

a question of justice t hat must be aimed at resolvi ng the underlying di spute.

2 See part IV(c) below.

3 Helen Taylor ‘Forcing the court’s remedial hand: Non-compliance as a

catalyst for remedia l innovation’ (2019) 9 Constitutional Court Review 257.

4 2014 (4) SA 179 (CC).

5 Me ghan Finn ‘AllPay Remedy: Dissecti ng the Constit utional Cour t’s approach

to organs of state’ (2013) 6 Constitutional Court Review 258.

6 Max du Plessis & Andreas Coutsoudis ‘Considering cor ruption through the

AllPay lens: On the limits of judicial review, strengthening accountability, and

the long arm of the law’ (2016) 133 SALJ 767.

7 Ibid at 768.

8National Education, Health and Allied Workers Union v Minister of Public Service

and Administration & oth ers; National South African D emocratic Teachers Union & others

v Department of Public Service and Administration & others; Public Servants Association

& others v Minister of Public Service and Administration & others; National Union of

Public Ser vice and Allied Workers v Minister o f Public Service an d Administration & others

2022 (6) BCLR 673 (CC) (in footnotes ‘NEHAWU (CC)’ ).

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We contrast distributive with corrective conceptions of justice and argue

that the court, in crafting the remedy, erroneously employed a wholly

distributive conception of justice when corrective justice should have

guided the court’s hand. We argue this for two reasons. First, because

resolving the matter entirely through the lens of distributive justice did

not resolve the underlying dispute but instead provided a reason for the

court to ignore it. Secondly, because ignoring principles of corrective

justice allowed the court to class public serva nts as ‘unjustiably enr iched’

while failing to recognise that the state was itself ‘unjustly enriched’ by

an entire year of collective labour peace. This unjustiably suppressed

the employees’ constitutionally protected right to strike at a time when

the state needed the co-operation of public servants the most.

Part IV concludes that although this matter was a complex and unique

one, it provided the court with an opportunity — o the back of the

‘AllPay saga’9 — to rene a bifurcated and evidence-based approach to

remedy in disputes that are deeply polycentric and thereby stress-test

the court’s position in the separation of powers. However, the court

missed this opportunity. Part V concludes the article by commenting on

developments on the ground in response to this case.

II CASE SUMMARY

Towards the end of 2020, the LAC delivered judgment in Public Servants

Association v Ministe r of Public Service and Administration.10 T he LACdecision

was appealed to the Constitutional Court in late 2021, with a judgment

delivered in early 2022.11 The facts are as follows.

On 21 May 2018,12 the state — represented by the Minister of Public

Service and Administration (‘the PSA Minister’) — entered into a

collective agreement with the admitted union members to the Public

Service Coordinated Bargaining Council (‘the Council’) concerning

adjustments to the salary structure of public service employees for three

nancial years: 2018/19, 2019/20 and 2020/21.13 Although the collective

agreement and concom itant salar y increases were honoure d in 2018/19 and

2019/20, it is common cause that the state did not honour the collective

agreement in 2020/21.14

9AllPay Consolidated Investment Holdings (Pty) Ltd v CEO of the South African

Social Security Agency 2014 (1) SA 604 (CC) (‘the AllPay merits decision’); the

AllPay remedy decision supra note 4.

10 (2021) 42 ILJ 796 (LAC) (‘Public Servants Association (LAC )’).

11NEHAWU (CC) supra note 8.

12 Ibid paras 8–16 for details of the back-a nd-forth negotiations preceding the

collective agreement.

13Public Ser vants Association (LAC) supra no te 10 paras 7–8 for t he terms of the

collective agreement.

14 Ibidparas 2–3; NEHAWU (CC) supra note 8pa ras 18 –21.

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