Public Servants Association of South Africa v Minister of Justice And Constitutional Development and Others
| Jurisdiction | South Africa |
| Judge | Landman J |
| Judgment Date | 25 September 2001 |
| Docket Number | J 3895/01 |
| Court | Labour Court |
| Hearing Date | 11 September 2001 |
| Citation | 2001 JDR 0791 (LC) |
Landman J:
1. The State Attorneys and Assistant State Attorneys have been unhappy with their salaries for
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some time. They are paid less than other professionals in the Department of Justice and, of course, much less than attorneys in private practice. At least 138 of the 240 State Attorneys (including assistants and possibly candidate attorneys) are on strike. Their union alleges that the strike is a protected one. It is not in dispute that they have the right to strike. The Minister of Justice and Constitutional Development and the other respondents dispute that the strike is a protected one. The Department of Justice has given notice that disciplinary steps will be taken against those on strike. A rule nisi was issued. This is the anticipated return day.
2. State Attorneys, as is the case with all public service employees, have their conditions of service determined by the Minister of Public Service and Administration, in part, through collective bargaining with recognised trade unions.
3. The Public Service Association (the PSA) and other trade unions that are party to the Public Service Co-Ordinating Bargaining Council (the CBC) negotiate salaries and other terms and conditions of employment around April of each year. These negotiations are preceded by the submissions by trade unions of their demands in respect of salaries and other terms and conditions of employment. The collective agreement that results from such negotiations is implemented with effect from 1 July of the year in respect of which the parties are negotiating.
4. On 24 February 2000 the PSA addressed a letter to the secretary of the General Public Service Sectoral Bargaining Council (SBC). The dispute was referred to the SBC and not to the CBC, as it allegedly related to a sector specific issue, in this case, the State Attorneys employed in the Department of Justice, and did not involve other sectors within the public service.
5. At the SBC it was agreed that the parties would enter into bilateral discussions concerning the demands of the State Attorneys. A number of meetings were held between the PSA and the employer (the latter being represented by the Department of Justice and Constitutional Development, the Treasury as well as by the Department of Public Service and Administration (the DPSA)). Despite
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these endeavours, no agreement was arrived at concerning the demands of the State Attorneys.
6. Meanwhile, at the CBC finality was achieved in respect of the annual wage negotiations. Resolution 7/2000, a collective agreement, was signed on 28 September 2000 by the State and the PSA as well as by certain other public sector unions.
7. Resolution 7/2000 regulates, inter alia, the salary increases for all public servants for the financial year 2000/2001. This financial year runs from 1 April 2000 to 31 March 2001. The resolution provides:
'1. Objectives
. . .
To provide for the annual wage increase for public service employees for the 2000/2001 financial year.
This agreement applies to the employer and employees:
who are employed by the State; and
who fall within the registered scope of the PSCBC.
. . .
The annual wage increase for the 2000/2001 financial year shall be an average of 6.5% of which 0.5% shall be paid on a sliding scale according to annexure B.'
8. On 9 October 2000 the PSA proposed that the dispute concerning the State Attorneys be referred to arbitration. This proposal became the subject of discussion within the Departmental Bargaining Council of the Department of Justice. The DG: Justice agreed on 20 August 2001 to refer the salary dispute to arbitration. This agreement, however, contained the proviso that the agreement of the DPSA also had to be obtained. The DPSA did not agree to arbitration.
9. On 16 November 2000 the PSA referred a dispute concerning the State Attorneys to the SBC for conciliation. At the conciliation meeting, which was held at the SBC, the State objected to this forum and maintained that the dispute should be referred to the CBC. Accordingly, and by agreement, the same dispute was then referred by the PSA to the CBC.
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10. A conciliation meeting took place at the CBC on 9 April 2001. The parties were unable to resolve the dispute and a certificate was issued confirming that the dispute remains unresolved.
11. Thereafter the parties again discussed the possibility of the State Attorneys' dispute being referred to arbitration. Nothing came of it.
12. On 8 August 2001, the PSA addressed a letter to the DG: Justice giving notice in terms of s 64(1)(d) of the Labour Relations Act 66 of 1995 (the LRA) that the State Attorneys, who are members of the PSA, would embark on strike action with effect from 3 September 2001.
13. Prior to the commencement of the strike, the DG: Justice distributed a circular dated 29 August 2001 throughout the Department. Paragraph 2 of this circular reads as follows:
'These industrial actions are protected under the Labour Relations Act, 1995, meaning that persons who participate in these actions do not commit a delict or a breach of contract nor can they be subjected to any disciplinary action by the employer. However, those individuals who misconduct themselves during this action, are liable to disciplinary action, despite the protection afforded by the Act.'
14. On 3 September 2001 the majority of State Attorneys who are members of the PSA commenced with strike action.
15. Certain of the State Attorneys currently on strike are defined as part of the Senior Management of the Department of Justice. On 4 September 2000, certain of these State Attorneys received a letter from the DG: Justice alleging, inter alia, that they were obliged to follow an alternative dispute settlement procedure. The PSA requested the DG: Justice to withdraw this letter. He declined to do so.
16. On 5 September 2001, the DG: Justice addressed a letter to all State Attorneys, as well as to the PSA. The letter stated:
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'The Department of Justice and Constitutional Development believes that the current strike action pursued by the State Attorneys is unlawful. The Public Servants Association is a signatory to Resolution 7/2000 of the PSCBC that addressed the issues in dispute. Therefore, the State Attorneys cannot strike over a matter in which an agreement was concluded and implemented.
We hereby instruct you to return to work on 7 September 2001 at 8:00.
The failure to comply with this instruction will result in disciplinary action being taken against you. This may include dismissal.'
17. On 6 September the PSA's attorneys of record wrote to the DG: Justice demanding that the letter of 5 September 2001 be withdrawn. The letter was not withdrawn. On 8 September the PSA applied for a rule nisi and an interim interdict. This relief was granted by my sister, Revelas J.
Authority
18. The respondents challenged the right of the deponents to the PSA's affidavits to initiate these proceedings. But, after additional affidavits had been filed, it seems to me, the authority to launch the application was no longer an issue.
Urgency
19. The urgency of the application was contested on the return day. This matter was decided when the rule nisi was issued. It cannot be revisited. The situation contemplated in Rule 6(12)(c) of the Rules of the High Court does not arise here.
The nature of the relief
20. The PSA seeks a declaration and a final interdict. To obtain the interdict, it must show, on the facts as they appear from the papers, that:
it has a clear right;
the respondent has threatened to interfere with that right; and
it has no alternative remedy.
21. All three requirements must be met before an interdict can be granted. See Prest The Law and
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Practice of Interdicts: Juta (1996) at 43.
22. Insofar as factual issues (as opposed to legal issues) are involved, final relief may be granted if, on the facts stated by the applicant which are not denied by the respondent, as well as the facts stated by the respondent, the granting of the relief is justified. See Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C and Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430H-431A.
23. In Soffiantini v Mould 1956 (4) SA 150 (E) at 154E-H it was held;
'If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to Court on motion, then motion proceedings are worthless, for a respondent can always defeat or delay a petitioner by such a device.
It is necessary to make (sic) a robust, common sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.'
See also Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1165.
A protected strike?
24. The respondents submit that the PSA does not have a clear right to the relief. They raise several reasons why they allege the strike is unprotected.
Senior managers
25. It is the respondents' contention that the State Attorneys who comprise the corps of "Senior Managers" are not entitled to participate in the strike. This is based broadly on the averment that these attorneys have been taken out of the bargaining unit and that their salaries are regulated by 'Ministerial Determinations'. It is unnecessary to consider whether or not this is so. Because, even if the contention is correct, it does not preclude these attorneys from joining their colleagues in participating in a protected strike...
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