---

 

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

 

CASE NO: J 281/23

 

 

In the matter between:

 

MINISTER FOR THE PUBLIC SERVICE AND

ADMINISTRATION                                                           First Applicant

 

THE DEPARTMENT OF PUBLIC SERVICE AND

ADMINISTRATION                                                           Second Applicant

 

and

 

NATIONAL EDUCATION, HEALTH AND ALLIED

WORKERS UNION                                                           First Respondent

 

MINISTER OF FINANCE                                                  Second Respondent

 

NATIONAL TREASURY                                                   Third Respondent

 

PUBLIC SERVICE COORDINATING

BARGAINING COUNCIL                                                 Fourth Respondent

 

Heard:          04 March 2023

Order:          04 March 2023

Reasons:     06 March 2023

 

 

JUDGMENT

 

 

TLHOTLHALEMAJE, J

 

Introduction and background:

 

[1]             On 4 March 2023, this Court issued an order in the following terms;

 

1.          The Rules of Labour Court relating to time and manner of service are dispensed with and the matter is dealt with as one of urgency.

2.          The strike notice dated 23 February 2023 issued by NEHAWU, received by DPSA on 24 February 2023, is set aside.

3.          The strike action, picket, or any other form of industrial action that is planned by NEHAWU to commence at 06h00 on Monday 6 March 2023, is interdicted.

4.          NEHAWU and its members employed by the second applicant are interdicted and restrained from commencing with or participating in a strike or strike action.

5.          NEHAWU is ordered to inform its members and officials and all persons to whom it had given notice of the strike, of the order of this court, by whatever legal means are available to it, by no later than 18:00 on Sunday 5 March 2023.

6.          There is no order as to costs

 

[2]             The above order was granted resulting from an urgent application brought by the applicants (the first respondent being the Minister responsible for the second applicant. For the sake of convenience, I will only refer to the DPSA as the applicant.

 

[3]              That application was launched on 2 March 2023, and was triggered by a Notice of Strike issued by the first respondent (NEHAWU), dated 23 February 2024. The background leading to the issuance of the Notice to Strike by NEHAWU is fairly common cause and may be summarised as follows;

 

3.1       NEHAWU, POPCRU, DENOSA and HOSPERSA, acting on behalf of their respective members had all referred a mutual interest dispute in terms of section 64(1) of the Labour Relations Act[1] (LRA) to the fourth respondent (PSCBC) on 6 October 2022. The dispute essentially related to the negotiations for the terms and conditions for the period 1 April 2022 to 31 March 2023.

 

3.2       Protracted negotiations at the PSCBC having failed, a certificate of outcome was issued on 1 November 2022. Picketing Rules were also concluded and agreed upon by the parties on the same date that the certificate was issued. The lawfulness of the intended strike is therefore not in issue before this Court.

 

3.3       NEHAWU contends that since the certificate of outcome was issued, its members and those of other Unions that are party to the same dispute, have between 1 November and 9 December 2022, and in persisting with their demands, embarked on several pickets; marches; handing in of memorandum of demands to Government; and mass protests throughout the country. The PSA had also embarked on a nationwide strike on 10 November 2022. The DPSA appears not to have backed down on its stance and has since 17 November 2022, unilaterally implemented a 3% across the board increase backdated to 1 April 2022.

 

3.4       The DPSA’s invitation to the Unions on 17 February 2023, to commence negotiations at the PSCBC in respect of the April 2023/March 2024, and the tabling of its offer did not yield any result. This led to NEHAWU issuing a strike notice on 23 February 2023 in accordance with the provisions of section 64(1)(d) of the LRA. The Notice as addressed to the Director-General of the DPSA and the PSCBC reads as follows;

 

1.           This letter serves as a seven (7) days’ notice which to notify your office, all Director Generals and Heads of Departments across all departments and provinces (including SASSA, SIU and SANBI, for a strike action.

2.           This comes after the failed wage negotiations for 2022/2023 which resulted in the Commissioner at the PSCBC issuing a certificate of none resolved on 01^st November 2022. Please find attached the certificate and the picketing rules as concluded in the Council.

3.           Our strike action will commence on 06^th March 2023 in all the workplaces in the public service including those of SASSA, SIU and SANBU. The issues that have resulted to this strike action includes but not limited the following;

-      Refusal by the employer to accede to the 10% increment

-      Refusal to grant workers R2 500 increase for housing allowance that it amended to say those who resign or dismissed shall be entitled to receive accumulated savings

-      Pay progression to be introduced beyond the last notch

4.           Our members throughout the country will begin the strike action at 06h00 am on the 06^th March 2023 and the strike will continue up until our demands are met

5.          Our members as usual will conduct themselves in a peaceful manner and in line with the picketing rules as concluded in the council. This has been the approach by our members in all previous strike action that we had in the sector.

6.         We request that the letter be sent to all Director Generals and Heads of Departments including the CEO of SANBI, SIU and SASSA as these institutions are also affected by the austerity measures and the pathetic 3% increment.

 

Preliminary issues:

 

[4]             In resisting the application, NEHAWU raised three preliminary points on which it was submitted that the application ought to be struck off the roll or at worst, be dismissed on its merits.

 

(i)          Non-joinder:

 

[5]             At the core of the DPSA’s submission in seeking that the Strike Notice issued by NEHAWU be set aside is the delay in exercising its rights to strike emanating from the certificate of outcome in which the other Unions are a party. NEHAWU contends that the DPSA has not complied with the provisions of Rule 8(1) of the Rules of this Court, which demands that an application of this nature must comply with the requirements of inter alia Rule 7(1) and 7(2) of the Rules. In this regard, the contention is that the parties that have a substantial interest in the matter, and whose rights might be affected by the relief sought, have not been joined to these proceedings. To this end, it was argued that the other Unions, viz, POPCRU, HOSPERSA and DENOSA, whose rights to strike derive from the same certificate of outcome ought to have been joined since the setting aside of the Notice to Strike will affect their rights to exercise similar rights to strike, and that to the extent that the other Unions may wish to exercise that right, it would require that they refer yet another dispute to the PSCBC.

 

[6]             NEHAWU further contends that setting aside the Strike Notice, in the absence of setting aside the certificate of outcome will leave the other Unions without a remedy being the right to strike. This also implies that the Conciliator who had issued the certificate of outcome, and thus had an interest in the matter, ought to have been joined to the proceedings. Similarly, it was submitted that the application was defective since the members of the Union who are affected by the relief, and who exercise their rights to strike individually albeit within the collective, were also not joined nor cited.

 

[7]             The test to uphold a plea of non-joinder is settled as reiterated by the Supreme Court of Appeal in Absa Bank Ltd v Naude NO[2] and Judicial. The test is whether a party has a direct and substantial interest in the subject matter of the litigation which may prejudice the party that has not been joined, and that if an order or judgment cannot be sustained without necessarily prejudicing the interest of third parties that had not been joined, then those third parties have a legal interest in the matter and must be joined.

 

[8]             Similarly in –Judicial Service Commission and Another v Cape Bar Council and another^[3], it was held that the joinder of a party is only required as a matter of necessity, as opposed to a matter of convenience, if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the Court in the proceedings concerned. Thus, the mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinder plea.[4] To buttress the legal approach, the apex court has long held that the test for joinder requires that a litigant have a direct and substantial interest in the subject-matter of the litigation, that is, a legal interest in the subject matter of the litigation which may be affected by the decision of the court[5].

 

[9]             Against the above principles, it is apparent that the subject matter of this application is the strike notice issued by NEHAWU. None of the other Unions have issued similar notices. Irrespective of the fact that the certificate of outcome was issued in respect of all the other Unions, NEHAWU is on its own in seeking to exercise the rights of its members in embarking on a strike action. Furthermore, the position of the DPSA is that it does not seek to have the certificate of outcome set aside. That certificate as repeatedly stated in these proceedings, remains extant irrespective of the outcome of this application, and thus in no manner are any of the rights of the other Unions affected. These other Unions’ rights therefore remain unaffected by the outcome related to NEHAWU’s strike notice.

 

[10]         The issue of the non-joinder of the Conciliator ought to be easily disposed of since it is apparent that there is no basis upon which it can be said that a Conciliator has any interest in the dispute between the parties before the PSCBC, beyond the discharge of his obligations under the provisions of section 135 of the LRA. In any event, the Conciliator issued the certificate under the auspices of the PSCBC which is joined, even though it too has no interest whatsoever in the dispute, beyond appointing the Conciliator under the provisions of section 135(1) of the LRA.

 

[11]         The non-joinder or non-citation of NEHAWU’s members in these proceedings is equally a non-issue. It was correctly pointed out on behalf of NEHAWU that the provisions of Rule 7(1) and (2) require that the application ought to have been brought on notice to all its members since they clearly have an interest in the matter. Be that as it may, within the context of this application, NEHAWU opposes that application on behalf of its members, viz as the bargaining agent of its members at the PSCBC and within the DPSA. The Strike Notice was issued on behalf of its members, and throughout its Notice, reference is made to ‘our members’. To require of the DPSA in these circumstances when bringing an urgent application, to have brought notice and served it on all of NEHAWU’s members nationwide is indeed a big ask. The difficulty is further exacerbated by NEHAWU’s own doing. In the Notice, reference is made to ‘all members’, when some of these render services in areas declared essential service, and in some instances, where some of those members either fall outside of the scope of the bargaining council, or outside bargaining units. I will deal with this issue fully in this judgment. It is therefore against this background that even if it was required of the applicants to comply with the provisions of Rule 7(1) and (2), there is cause to condone such non-compliance.

 

(2)    Alleged non-compliance with the provisions of Section 68(2) of the LRA[6]:

 

[12]         NEHAWU complains that since the DPSA seeks final relief, these provisions were not complied with since it was only served with the application after hours by email on Wednesday, 1 March 2023 at approximately 17h45, albeit it was conceded that an unsigned application without the annexures was served on it before the completed application was served on Thursday, 2 March 2023. NEHAWU further lamented the fact that the matter was set down to be heard at 10h00 on Friday, 3 March 2023.

 

[13]         The above complaint comes about in circumstances where NEHAWU concedes that the DPSA gave notice of its intention to approach this Court for relief in a letter by their attorneys dated 28 February 2023, which it contends was only received by email on Wednesday, 1 March 2023, at approximately 07h19. It further contends that part of the letter of the DPSA constituted a demand that its members employed by certain entities (SASSA, SIU and SANBI) be excluded from the strike and that NEHAWU should confirm that its members that rendered essential services would not participate in the strike.

 

[14]         NEHAWU contends that it had met the demands and yet the application was persisted with unreasonably considering that the Strike Notice was dated 23 February 2023, and the DPSA had merely paid lip service to the requirements of Section 68(2)(a) of the LRA. It contends further that it was not afforded a reasonable opportunity to be heard before a "decision concerning the application" was taken, and further that the applicants have not shown good cause as to why a shorter period should be permitted.

 

[15]         NEHAWU’s submissions ought to be considered within the context of how and when service of the application took place and when this matter was heard. It is correct that this matter was originally set down for 3 March 2023. Confusion emanated from the timing of the set down, it being whether it was to be heard at 10:00 or 15:00. In the morning of 3 March 2023, Court was made aware of the delivery of the DPSA’s answering affidavit and the DPSA’s replying affidavit. Due to other factors that transpired in Court that had nothing to do with the matter in question, it was agreed between the Court and the legal representatives of both parties that the matter would be stood over and be heard on the Saturday of 4 March 2023 at 10:00. Indeed, the matter was heard at the scheduled time.

 

[16]         In the light of the above circumstances, and further it having been conceded on behalf of the DPSA that at best for NEHAWU, the original application was served on them some three hours short of the 48 hours requirement, and further to the extent that it had filed and served a substantial answering affidavit and was in possession of the DPSA’s replying affidavit from the morning of 03 March 2023, clearly it cannot speak of any prejudice to it let alone a lack of a reasonable opportunity within which to reflect on the applicants’ papers and present a substantial answer as it had in any event done. When the matter was stood over on 3 March 2023, NEHAWU to the extent that it wished, could have sought leave from the Court to supplement its answering affidavit.

 

[17]         The Court has taken account of the interests at stake in this matter, of both NEHAWU and its members, and the obvious general impact of the strike action. In the light of the facts pointed out above and the minimal prejudice that NEHAWU can complain of, the interests of justice, even in the absence of a substantive application for condonation to show cause within the requirements of section 68(2)(c) of the LRA, dictate that condonation be granted.

 

(3)    Urgency:

 

[18]         NEHAWU contends that the application is not urgent on the grounds that it is premature since it was not compliant with the provisions of section 68(2) of the LRA. I have already dealt with this issue elsewhere in this judgment. What needs to be stated however is that it is common cause that upon receipt of the notice to strike on 24 February 2023, the DPSA had upon seeking and obtaining legal opinion, addressed correspondence to NEHAWU on 26 February 2023, informing it that the strike notice was improper because it referred to ‘a public wide strike’ when the dispute fell within the ambit of the bargaining council. NEHAWU was invited to consider reviewing its notice to strike.

 

[19]         NEHAWU had responded through its attorneys of record on 1 March 2023. It essentially advised the DPSA inter alia that it was alive to the limitations on the right to strike with specific reference to the provisions of section 65(1)(d) of the LRA, and that the Strike Notice may be disregarded insofar as it concerned its members employed by SASSA, SIU and SANBI. NEHAWU further in that correspondence advised and acknowledged that it was aware of a possible urgent application. On this latter issue acknowledged by NEHAWU, and to the extent that the DPSA’s correspondence was sent on 26 February 2023, and this application was launched on 1 March 2023, this further fortifies my conclusions made elsewhere in this judgment that NEHAWU has no grounds to complain that it was not given an opportunity to be heard as contemplated in section 68(2)(b) of the LRA. An intention to bring an urgent application flowing from the strike notice, and prior to such an application being brought, was in my view sufficient in the circumstances of this case, to enable NEHAWU to have consultations with its members and properly respond. Its response however was to demonstrate its intention to proceed with its strike action, save to clarify its position that reference in the notice in respect of those employees that ought not to be on strike was to be disregarded.

 

[20]         The second ground upon which urgency was challenged was that it was self-created. NEHAWU points to the events since the strike notice was issued on 23 February 2023 (as received by DPSA on 24 February 2023). These included the DPSA’s correspondence of 26 February 2023, the DPSA’s own contention that the drafting of the papers commenced on 27 February 2023 when a Notice in terms of section 68(2) of the LRA had not been filed, and the fact that it (NEHAWU) was afforded less than 48 hours to file answering papers.

 

[21]         I have already dealt with the complaints surrounding non-compliance with the provisions of section 68(2) of the LRA and no more need be said. The principles applicable to urgency, as arising from the provisions of Rule 8 of the Rules of this Court, and as can further be gleaned from various decisions of this and other Courts^[7] are trite. An applicant that approaches the Court on an urgent basis essentially seeks an indulgence, and to be afforded preference in order to prevent prejudice and harm that may materialise or persist if its matter is not heard on an urgent basis.

 

[22]         Central to a determination of whether a matter is urgent is whether the applicant has in the founding affidavit, set forth explicitly, the circumstances which renders the matter urgent, and the reason why substantial relief cannot be attained at a hearing in due course. It is further trite that urgent relief will not be granted in circumstances where it is apparent that the urgency claimed is self-created. Self-created urgency will be evident in circumstances where an applicant failed to bring the application at the first available opportunity^[8]. Effectively, it is expected of litigants to react immediately to remedy or prevent harm and/or prejudice, rather than standing back and doing nothing until it is too late^[9].

 

[23]         In this case, the DPSA’s principal argument was that the matter deserved the urgent attention of this Court on the basis that upon receipt of the strike notice on Friday of 24 February 2023, it had engaged its legal representatives on the Monday of 26 February 2023, resulting in correspondence already referred to being sent to NEHAWU. It was only on 27 February 2023 that the drafting of the papers had commenced. The papers could only be finalised once further information was obtained from the third respondent (National Treasury), as well as the outcome of the meeting of the Committee of Ministers (COM), which only took place on 28 February 2023 at 19h00. At that meeting, the two relevant Ministers (DPSA and Finance) had to consider the demands, the strike notice and obtain opinions on how to proceed with the matter. After the COM meeting, the papers were then served on 1 March 2023.

 

[24]         Arising from the above, it is not clear on what basis it can be said that the DPSA has not acted with the necessary haste in bringing this application given the obvious constraints it had to surmount prior to doing so. Reference to the time period between certain events by NEHAWU cannot in my view make the DPSA’s conduct to be deemed lax, when at the most, it had explained what steps were taken within the period that the strike notice was issued and when the papers were served. It can thus not be said that urgency is self-created or that the DPSA failed to bring the application at the first available opportunity. It did so.

 

[25]         The next issue to be determined is whether the DPSA has set out forth, the circumstances that renders the matter urgent. Aside from attacking urgency as being self-created given the time lines, NEHAWU could not seriously argue that there are no factors placed before the Court that rendered the matter urgent. The first obvious factor is that as at the hearing of the matter on the Saturday of 4 March 2023, the national strike called by NEHAWU was due to commence from the morning of 6 March 2023. The second factor is that it cannot seriously be refuted that the consequences of such a nationwide strike and given the scope of NEHAWU’s members within the public service are indeed dire. Inasmuch as it appreciated that NEHAWU’s right to strike ought to be jealously guarded and protected, at the same time, one cannot be oblivious to the effects and consequences of the exercise of that right to the general public, especially if it is contended that such a right cannot be exercised in the light of the factors to be dealt with shortly. Thus, the fact that the strike action is imminent, and the consequences thereof on the provision of services on the broader general public are obvious, these are factors which on their own demonstrates urgency. Flowing from these observations, it therefore follows that one cannot even speak of substantial redress that the DPSA or the general population can obtain in due course. That impact is clearly immeasurable for any contention to be made that it can be redressed, particularly taking into account the sectors within the public service within which NEHAWU has its members.

 

The merits:

 

[26]         The DPSA seeks to have the strike notice set aside on four main grounds, viz, that the it is stale given the time period between the issuance of the certificate of outcome and the timing of the strike; that it is irregular, as it is on behalf of employees who are not employed by government or do not fall within the scope of the PSCBC; that it is irregular, as it extends to essential services employees; and lastly that it is informed by demands that cannot be met.

 

[27]         I will deal first with the second and third grounds relied upon by the DPSA, in the light of the common cause facts in that regard. There is no doubt that NEHAWU upon receipt of the DPSA’s letter of 26 February 2023, had responded on 1 March 2023 through its attorneys of record, wherein it informed the DPSA that any reference to all employees in SASSA, SIU, SANBI ought to be disregarded. The letter however as correctly pointed out on behalf of the DPSA, does not specifically address itself to those employees in essential service, other than acknowledging the limitations on the right to strike with specific reference to section 65(1)(d) of the LRA.

 

[28]         It is appreciated that the provisions of section 64(1)(b) of the LRA merely required of NEHAWU as in this case, to the issue a strike notice in accordance with the time frames set out in section 64(1)(d) of the LRA[10]. There can however be no quarrel with the primary contention reiterated in the minority judgment in SATAWU that the purpose of issuing the notice is to enable the employer to take stock and to decide whether or not to concede to the demands being made by the union, and further to enable it to take steps to protect its operations by making alternative arrangements if the strike takes place. This approach has been recognised as being in line with one of the primary objectives of the LRA, which is to promote orderly collective bargaining[11].

 

[29]         The primary concern raised by the DPSA with the strike issued by NEHAWU was that it had included employees employed by SASSA, SIU, SANBI, and who are not in the bargaining unit nor employed in the public service. Equally problematic with the notice was that notwithstanding its knowledge that its members in some instances fell within essential services, NEHAWU made reference to ‘all the workplaces in the public service’ or ‘our members throughout the country’.

 

[30]         The issue in this case however is not whether from its notice, NEHAWU has complied with the time frames. This technical, albeit a turning point in this case, results from NEHAWU’s own undoing with the content of its own strike notice. With the clear knowledge of the limitations on the right to strike, NEHAWU for reasons that are not clear, chose to include employees and workplaces that ordinarily would not have been involved in its strike action. On that basis alone, the notice to strike was not only defective but also unlawful to the extent that it fell foul of the very limitations in section 65 of the LRA that NEHAWU had acknowledged.

 

[31]         It nonetheless gets worse for NEHAWU in that rather than withdrawing the strike notice and issuing a fresh one, it chose to address the defect through correspondence from its attorneys of record. Correspondence from attorneys on behalf of NEHAWU cannot by any stretch of imagination be equated with a notice contemplated within the meaning of section 64(1)(b) or (d) of the LRA. In this case it is even worse to the extent that any ‘clarification’ or amendment to the original notice through correspondence from the attorneys was only done on 1 March 2023, when those excluded departments and employees would have known of the strike since 24 February 2023. Thus, as things stand, and come 6 March 2023, members of NEHAWU in ‘all the workplaces in the public service’, inclusive of those rendering essential services and those employed by SASSA, SIU and SANB, will all be joining the strike because of the ambiguity and uncertainty NEHAWU had caused. NEHAWU has not made any attempt at rectifying the fatal notice by formally withdrawing it and re-issuing a lawful and non-ambiguous one. Such a fresh notice would have to have been similarly addressed to all the intended recipients as per the original notice, with the defects being specifically rectified. This would have clearly amongst other things, enabled the DPSA and all the departments to properly re-adjust its alternative arrangements, and thus ensured orderly collective bargaining. Such fatal defects could not have been rectified by mere correspondence to the DPSA, with mere assurances that NEHAWU was aware of the limitations to strike. More was required, and there was nothing in the answering affidavit indicating that more was done to ensure that those ordinarily excluded from the strike action would duly report for duty.

 

[32]         To this end, it follows that arising from NEHAWU’s own undoing, the notice of strike as it stands arising from its correspondence of 1 March 2023, remains defective and unlawful. For these reasons alone, the strike notice ought to be set aside without the need for the Court to determine questions whether that strike notice was stale or not, nor the question whether the notice contains demands that cannot be met. The Court cannot in any event determine these issues when the strike notice is unlawful and defective from the beginning. That would give the defective notice legitimacy when these hurdles have not been surmounted.

 

[33]         I have further had regard to the issue of costs, and it was sensibly submitted on behalf of the DPSA that such a costs order is not warranted in the light of the on-going relationship between the parties. Accordingly, no order as to costs ought to be made.

 

[34]         It is for all for the above reasons that the order as above was made.

 

 

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

 

APPEARANCES:

 

 

For the Applicant:                         T Bruinders SC

Instructed by:                               CN Phukubje INC. Attorneys

 

 

For the First Respondent:            WP Schöltz,

of Schöltz Attorneys

 

---