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 NAT IONAL EDUCATION,

HEALTH AND ALLIED WORKERS UNION

v MINISTER OF PUBLIC SERVICE AND

ADMINISTRATION (CC)*

JUSTIN WINCHESTER†

Bachelor of Civil L aw candidate, Faculty of L aw, University of Oxford

CATHERINE WILLIS-SMITH‡

Teaching Assistant, Depart ment of Public La w, University of Cape Town

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

others 2022 (6) BCL R 673 (CC), the Constitutional Cour t declared invalid and

unenforceable a c lause regulating t he third payment per iod in a collective agr eement

regulating per iodic wage increa ses for public ser vice employee s. We do not take issue

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

However, we questio n the reasoning prov ided for the ‘just and equit able’ 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 peac e by curtailing pu blic servants’ r ight to strike, and the co nsequences

of its decision on t he eectiven ess of the delay-ba r in preventing ill- motivated state

self-revie w. 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 judiciar y’s proper place in the sepa ration of powers an d maximises reme dial

possibilities for inno cent third partie s to state contract s. We conclude with what ha s

happened on the g round since this de cision was reac hed.

Admin istrat ive law — AllPay — del ay — ‘ju st and equita ble’ remedy —

distr ibutive and corrective just ice

I IN TRO DUC TIO N

Lawyers ca re about doctrinal reasoning and the use of authority; lay

litiga nts truthful ly only care about their remedy.1 It is thus crucial to

the legitimacy of court s that they are seen to dispense justice in the

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

* We are indebted to S imon Thompson for i nitiat ing and encour aging

our writ ing of thi s article a nd for his ma ny hours of comm ent, critiq ue and

conversation, w ithout which th is art icle would not have come to f ruition.

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

and incisi ve comments on ea rlier dra fts, and t o the anonymous p eer reviewers

for their feedba ck. All er rors remain our own.

† BCom LLB (Cape Town).

‡ LLB LLM (Cape Town).

1 Michael Bishop ‘Remedie s’ in Stu Woolman & M ichael 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 law yers and non-law yers alike,

particularly when it ha s carefu lly considered the principles for remedying

void government contrac ts shrouded in polycentricity.2 In pa rticu lar,

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

AllPay Consolidated Investment Holdi ngs (Pty) Ltd v CEO of the South Afr ican

Social Secur ity Agency (No 2)4 (‘t he AllPay remedy deci sion’) was said to be

‘laudable’5 and representative of ‘ judici al creativity … on fu ll display’.6

Aordin g the question of remedy equal and independent attention is

not only a new and ref reshing approach7 but one that likely va lidates t he

signicance of remedies to those who come before the cour ts seekin g

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

Minister of Public S ervice and Admin istration8 (‘the Wage Bill case’) compares

unfavourably again st this pra ise.

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

and summarises t he nding s of the Labour Appeal Court (‘L AC’) and

the Constitutional Cour t in respect of (a) the val idity 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 ar ticle focuses on ly on the Constitutional Cou rt’s

judgment. We do not take issue with the Const itutional Court’s handl ing

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

Part III cr itiques the cour t’s reasoning reg arding the remedy it ordered. In

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

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

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

unions — al l 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 cou rt’s remedia l hand: Non-c ompliance a s a

cataly st for remedia l innovation’ (2019) 9 Constitutional Court R eview 2 57.

4 2014 (4) SA 179 (CC).

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

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

6 Max du Plessis & A ndreas Cout soudis ‘Cons idering cor ruption through the

AllPay lens: On the li mits of judic ial revie w, strengthen ing account abilit y, and

the long arm o f the law’ (2016) 133 SALJ 76 7.

7 Ibid at 768.

8 National Educa tion, Health and Allied Worke rs Union v Minister o f Public Ser vice

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

v Departme nt of Public Ser vice and Admini stration & others; Public S ervants Asso ciation

& others v Ministe r of Public Ser vice and Administ ration & others; National U nion of

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

2022 (6) BCLR 673 (CC) (in fo otnotes ‘NE H AWU (CC)’ ).

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FOOTING TH E (WAGE) BILL 171

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

We contrast distr ibutive with cor rective conceptions of justice and argue

that the court, in craf ting the remedy, erroneously employed a wholly

distr ibutive conception of justice when cor rective just ice should have

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

resolving t he matter entirely throug h the lens of dist ributive just ice did

not resolve the underly ing dispute but instead provided a reason for the

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

justice al lowed the court to cla ss public serva nts as ‘unjustiably enr iched’

while failing to recognise t hat the state wa s itself ‘unjustly enriched’ by

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

the employees’ constitut ionally protected right to strike at a t ime when

the state needed the co-operation of public servant s the most.

Part IV concludes t hat althoug h this mat ter was a complex and unique

one, it provided the court w ith an opport unity — o the back of the

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

remedy in disputes that are deeply polycentric and t hereby stress-test

the court’s position in t he separation of powers. However, the court

missed th is opportunity. Part V concludes the article by com menting on

developments on the ground in response to this case.

II CASE SUMMA RY

Towards the end of 2020, the LAC delivered judgment in Public S ervants

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

was appealed to t he Constitut ional Court in late 2021, with a judgment

delivered in early 2022.11 The fac ts are as fol lows.

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

Service and Admin istration (‘the PSA Mini ster’) — entered into a

collective ag reement with the admitted u nion members to t he Public

Service Coordinated Ba rgain ing Counci l (‘the Council’) concerning

adjustments to t he salar y structure of public ser vice employees for three

nancia l 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 2 020/21.14

9 AllPay Consolidated In vestment Holdings (P ty) Ltd v CEO of the South Af rican

Social Sec urity Agency 2 014 (1) SA 604 (CC) (‘the AllPay merits decision’); the

AllPay remedy decis ion supra note 4.

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

11 NE H AWU (CC) supra note 8.

12 Ibid paras 8–16 for deta ils of the back-a nd-forth negotiatio ns precedi ng the

collective agr eement.

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

collective agr eement.

14 Ibid para s 2–3; NE HAW U (CC) supra note 8 pa ras 18 –21.

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