Western Cape Education Department and Another v George

• Jurisdiction: South Africa
• Judge: Mahomed CJ, Howie JA, Olivier JA, Zulman JA, Streicher JA
• Judgment Date: 27 March 1998
• Citation: 1998 (3) SA 77 (SCA)
• Docket Number: 168/96
• Hearing Date: 19 March 1998
• Counsel: M Arendse for the appellants No appearance for the respondent
• Court: Supreme Court of Appeal

Howie JA:

Before October 1995 a legally married woman employed in the public service whose husband was C not permanently medically unfit for paid employment was not entitled to the public service house owner allowance. That was laid down by a provision in the Public Service Staff Code and applied, by way of personnel administrative measures promulgated by the Minister of Education, to teachers. This piece of unwarranted discrimination notwithstanding, Karen George (to whom, although she is no longer a party to the litigation, I shall D refer as 'respondent') applied for the allowance. She is, and was at all material times, a legally married teacher in the employ, in a permanent capacity, of the two appellants, being the Western Cape Education Department ('the Department') and the Minister. But for her being married she would have been entitled to the allowance. E

The application was submitted in October 1994. The Department refused it on the ground that she was married. In November 1994 respondent took the matter to the Education Labour Relations Council ('the Council'), declaring a dispute. The Council was established by the Education Labour Relations Act 146 of 1993 ('the ELRA'). F

At a meeting in December 1994 of the Council's dispute committee it was agreed between the Department and respondent that she should approach the Public Service Commission with the request that it recommend a departure from the discriminatory provision in question on the ground that hers was an exceptional case. This the G Commission was empowered by the Public Service Staff Code to do. Respondent made the suggested approach but the Commission declined to assist. Its written response reads thus:

'1. The Commission considered the case of Mrs George, but indicated that it does not see its way clear to furnish a recommendation for a deviation from the existing prescripts. H

2. Pertaining to married women's participation in the Home Owner Allowance Scheme in general, it has to be pointed out that the relevant scheme is an existing service benefit and as such any amendment(s) to it can only be effected if, after negotiations in this regard, agreement is reached thereon between the employer and employee organisations. During I recent negotiations the State as employer declared its willingness to put aside R0,4 billion as part of a salary and service benefit improvement package to address gender disparities with regard to the Home Owner Allowance Scheme with effect from 1 April 1995. Thus far agreement on the package could not be reached.

3. In the circumstances, married women's participation in the Home Owner Allowance Scheme is sub judice being a matter of mutual interest that can only be dealt with by means of negotiations.' J

Howie JA

The negotiations, I should mention, were between the State and the South African Democratic Teachers' Union, A of which respondent was a member.

In March 1995 the Council wrote a letter to respondent recording that as the dispute had not been resolved the Council had, in terms of its constitution, to be deemed to have failed to settle it. Accordingly it was open to B respondent, so she was informed in the letter, to refer the dispute for determination by the industrial court in terms of s 18 of the ELRA. That she did. The proceedings were opposed by appellants but the industrial court found in her favour. The order it made was as follows:

'1. The respondents' refusal to accord to the applicant the benefits of the house owner allowance scheme on the C grounds that she is a married woman whose husband is not medically unfit to obtain paid employment is held to constitute an unfair labour practice.

2. Subject to para 4(a) hereof, the respondents are jointly and severally directed forthwith to accord to the...