SANDF may not withdraw from bargaining body – ConCourt

A Business Day report notes the SA National Defence Union has been struggling to engage with the employer since the Military Bargaining Council was established in 2000. The union brought an application for leave to appeal arising from three separate cases which were disposed of by the Supreme Court of Appeal in a single consolidated hearing last May and in two judgments in August last year. All the cases centred on the interpretation of the right of SANDF members and the employer to engage in collective bargaining. Judge Kate O’Regan, writing for the court, said the judgments in the High Court and SCA commenced their analysis with the meaning of section 23(5) and whether the section conferred a justiciable duty to bargain. She said this did not seem to be the correct starting point because section 23(5) provided that legislation be enacted to regulate collective bargaining. ‘The question that arises is whether a litigant may bypass any legislation so enacted and rely directly on the Constitution,’ she said. O’Regan said a litigant who sought to assert his or her right to engage in collective bargaining under section 23(5) should in the first place base his or her case on any legislation enacted to regulate that right, not on section 23(5). ‘To permit the litigant to ignore the legislation and rely on the constitutional provision would be to fail to recognise the important task conferred upon the legislature by the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights.’ O’Regan said legislation governing collective bargaining existed in the form of chapter 20 of the regulations. Full Business Day report Judgment