HELD AT CAPE TOWN CASE NO. C162/98 THE GOVERNMENT OF THE WESTERN CAPE PROVINCE JUDGMENT

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1 IN THE LABOUR COURT OF SOUTH AFRICA HELD AT CAPE TOWN CASE NO. C162/98 In the matter between : THE GOVERNMENT OF THE WESTERN CAPE PROVINCE Applicant and CONGRESS OF SOUTH AFRICAN TRADE UNIONS NATIONAL ECONOMIC DEVELOPMENT AND LABOUR COUNCIL First Respondent Second Respondent JUDGMENT MLAMBO J : 1. In this application the Applicant sought to interdict certain protest action which was to be staged on 11 May 1998 by first Respondent (COSATU) and its members in the Western Cape. I dismissed the application with costs and also granted an application for leave to appeal. In granting leave to appeal I specifically ordered that the protest action could go ahead as scheduled as it would have been practically impossible for the Labour Appeal Court to hear the appeal before 11 May I undertook to provide full reasons for my decision which I do hereunder. FACTS : 2. On 3 March 1998 COSATU served notice on second Respondent (NEDLAC) about possible protest action. In the notice COSATU stated that it intended to protest by calling for a mass stay away in the Western Cape of all our members, supporters, and the public in general so as to attend meetings, mass rallies, marches and pickets.

2 This notice was in terms of section 77(1)(b) of the Labour Relations Act no. 66 of 1995 ( the Act ). 3. On 9 March 1998 NEDLAC notified the Applicant of COSATU S notice and that it was in the process of arranging a special meeting in terms of section 77(1)(c) of the Labour Relations Act 66 of 1995 ( the Act ). For completeness sake I set out hereunder COSATU S demands which were attached to its notice to NEDLAC. COSATU demands that the following measures be put in place to contribute to the resolution of the Provincial Educational Crisis in the Western Cape. 1. Provincial Government must accept the financial assistance offered from National Government and use these finances to remedy the funding crisis in education. 2.The Provincial Government must re prioritise its budget to ensure that it reflects the prioritisation of education in Black working class areas. 3. Provincial Government must not withdraw any support measures such as subsidies to disadvantaged communities e.g. the buses used to transport children to school. 4.The Provincial Government must continue to fund all municipal costs of schools. 5.The Provincial Government must guarantee equality in public education by ensuring that no overcrowding occurs and manageable learner education ratios of 1:32 are implemented. 6.The Provincial Government must develop and implement measures to address the imbalances caused by apartheid between historically Black and White schools. 7.The Provincial Government must enter into good faith bargaining with the Labour movement to resolve the crisis in the interest of Working class communities. 8.The Provincial Government must refrain from passing on any additional costs to schools and consequently to parents for the funding of education.

3 9. The Provincial Government must put in place a funding mechanism that redresses the disparities between previously advantaged and disadvantaged schools. 10. The Provincial Government must redress imbalances, inequities andthe developmental needs of the people of the Western Cape. 4. On 9, 17 and 23 March, and on 15 April 1998 the Applicant met with COSATU under the auspices of NEDLAC. At the meeting of 23 March 1998 it was agreed that a task team be set up in which the Applicant and COSATU were represented. The task team was set up to investigate and address items 2, 6, 9 and 10 in COSATU S list of demands. The task team met on 4 and 9 April A minute of the meeting on 9 April 1998 records an agreement that the Applicant was expected to table a document at the broader NEDLAC meeting on 15 April 1998 explaining and providing information on certain issues. 5. At the meeting of 15 April 1998 Applicant s representatives provided indepth and extensive input regarding the issues raised by COSATU. Applicant also tabled a document titled Consolidated Program of Redress Western Cape Education Department which set out certain steps taken and to be taken to address issues of concern including those set out in COSATU s list of demands. Some of the issues covered in this document were : (a) That R 246 million was spent on establishing new schools and classrooms. (b) That an amount of R 39,132 million was allocated for the1998/1999 year for the MTEF (Medium Term Expenditure Framework) process. (c) That substantial amounts, running into several millions of Rands, were allocated as grants for certain other projects including transportation, maintenance of buildings, adult education, early learning and security services at schools. 6. Despite this input COSATU does not seem to have been appeased. Testimony to this is COSATU S stance during this meeting that the measures adopted by Applicant to redress imbalances in the education system were inadequate and that as far as it was concerned the parties had arrived at a deadlock. Understandably Applicant was disappointed at this stance. Applicant felt that the discussions until then were of such a preliminary nature

4 that more in depth discussions were necessary. With this variance in the parties stances the meeting seems to have ended somewhat inconclusively. 7. On 22 April 1998 COSATU invited Applicant to a consultation meeting on 29 April The next day however, COSATU gave notice to NEDLAC of its intention to proceed with the proposed protest action on 11 May On receipt of COSATU s notice NEDLAC, in a communication to Applicant, stated that This letter serves to inform you that COSATU Western Cape has tabled on NEDLAC a notice of possible protest action in terms of section 77(1)(d) of the Labour Relations Act of The NEDLAC process has now been exhausted (the meeting has been arranged by NEDLAC for Tuesday 28April 1998 is now cancelled). We hope you find an amicable mechanism to solve the matter. Thereafter a flurry of correspondence followed between Applicant s attorneys and COSATU S attorneys. The Applicant required COSATU to undertake to desist from the proposed action or alternatively that the proposed action take place on a day other than a school day. COSATU was not prepared to provide the undertaking required. Applicant then launched the present proceedings in which it sought to stop the proposed protest action. 8. In its Notice of Motion Applicant sought the following relief : 2. Declaring that the intended protest action called by first Respondent and scheduled for 11 May 1998 does not comply with section 77(1)(c) of the Labour Relations Act, 66 of 1995, in that the demands giving rise to such action do not relate to the socio economic interests of workers and / or in that the matter giving rise to the intended protest action has not been properly considered by NEDLAC. 3. Declaring that any person who takes part in the protest action on 11 May 1998 by a withdrawal of labour does not enjoy the protection afforded by section 67 of the Act. 4. Directing that the first Respondent advise its affiliates that its proposed protest action on 11 May 1998 is in breach of section 77 of the Act. 5. In the alternative to prayers 2, 3 and 4 above, an order directing that any protest action by first Respondent in consequence of the notice

5 issued by it on 9 March 1998 in terms of section 77(1)(b) of the Act may only take place on a day other than a normal school day. COSATU opposed the application and NEDLAC stated that it would abide the decision of this Court. 9. There are two issues for decision. First, do the demands made by COSATU concern socio economic interests of workers within the meaning of section 77? If so have those issues been considered by NEDLAC in terms of section 77(1)(c).SOCIO ECONOMIC INTEREST OF WORKERS : 10. Section 77(1) provides : (1) Every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if (a) (b) (c) the protest action has been called by a registered trade union or federation of trade unions; the registered trade union or federation of trade unions has served a notice on NEDLAC stating (i) the reasons for the protest action; and (ii) the nature of the protest action, the matter giving rise to the intended protest action has been considered by NEDLAC or any other appropriate forum in which the parties concerned are able to participate in order to resolve the matter; and (d) at least 14 days before the commencement of the protest action, the registered trade union or federation of trade unions has served a notice on NEDLAC of its intention to proceed with the protest action. Section 213 defines the phrase protest action as : the partial or complete concerted refusal to work, or the retardation or obstruction of work, for the purpose of promoting or defending the socio economic interests of workers, but not for the purpose referred to in the definition of a strike. 11. Mr Hoffman, for Applicant, submitted that section 77 should not be given an expansive or liberal interpretation. He argued that the exercise of the right to protest action must be restricted as little as possible. Expanding

6 on this submission, Mr Hoffman argued that protest action related to the interests of some group other than workers cannot enjoy the protection of the Act. He argued further that the demands underlying the proposed protest action pertained to educational issues and were unrelated to the interests of workers. 12. Mr Arendse, for COSATU, contended that its demands have the interest of advancing the socio economic interest of workers. He argued that COSATU s demands were aimed at addressing imbalances and redressing disparities, and were therefore very much concerned with the socio economic interest of workers. One of the bases on which this contention was advanced is that such demands were the demands of workers, as parents of children who attend school in disadvantaged areas, thus they have much to do with the socio economic interest of workers. 13. In this regard reliance was placed on the views of one Professor Maree who filed an affidavit supporting COSATU s position. His views are, in a nutshell, to the effect that : 1. Socio economic interests are interests that relate to both economic and social aspects of workers lives. The key social aspect of many workers lives is that of their families, including their children, many of whom are attending school. 2. There are inevitably educational costs for parents whose children go to school. The cost to parents of providing their children with a sound education depends on the amount of resources the Government makes available for education.as rule, the more resources the Government makes available, the less parents have to contribute to ensure that their children do receive a sound education. Furthermore, the socio economic conditions of workers and their families stand the best chance of improving all the time if the children receive a sound education. 3. It is a legitimate aspiration of parents to ensure that their children receive an education that will help them improve their socio economic condition in life. The socio economic interests of the worker parents can therefore not be separated from that of their children, when it comes to education.

7 14. The Applicant criticized Professor Maree s views on a number of bases, including the argument that he cast the net rather too wide. The Applicant also argued that if one considered the Labour Appeal Court s views in BUSINESS SA v COSATU & ANOTHER [1997] 5 BLLR 511 (LAC) (the BSA judgement) that the provisions of section 77 are to be interpreted restrictively, then COSATU s demands were excluded as issues related to the socio economic interests of workers. 15. The phrase socio economic interests of workers is not defined in the Act. Du Toit and others : The Labour Relations Act 1995 (Butterworths 1996) at page 221 state: there is no bright line separating socio economic interests from those that may be termed purely political. John Grogan in Workplace Law (Juta 1996) at page 179 says : The LRA gives statutory recognition to such actions when they only are aimed at promoting or defending the socio economic interest of workers. This is an expression of wide meaning, but it is questionable whether it includes commemorative stay aways. It would also certainly include acts directed at a purely party political end, although the difference between politics and socio economic matters is clearly difficult to draw. The Concise Oxford Dictionary (8th Edition) defines socio economic as relating to social status and economic position. 16. In an attempt to provide a definition of the phrase socio economic interest of workers I am mindful of the interpretative injunction placed on courts by the Act. Section 3 requires a court to interpret its provisions to give effect to its primary objectives. Section 3(a) read with section 1(b) requires the court to interpret the Act in order to give effect to the obligations incurred by the Republic as a member state of the International Labour Organisation. 17. It is not possible to provide an all embracing definition of the phrase socio economic interests of workers. This much seems to be conceded by P.A.K. Le Roux & Andre van Niekerk in Contemporary Labour Law volume 6 no.10 in which they consider the distinction between purely political strikes and those whose objective is to protest against a government s social and economic policies. They say that the distinction does not take matters much

8 further and clearly the definition is capable of a range of interpretations, ranging from a restrictive one to a liberal one. (P 85).In my view each matter depends on its particular circumstances.it should generally be sufficient for a party to place the demand or matter giving rise to the protest action squarely within the ambit of the social status and economic position of workers in general. 18. It is notorious that the disparities and imbalances that exist in education in the Western Cape are the direct results of past governmental policy that was, at least in its conception, specifically designed to achieve them. This was a policy which decreed unequal and unfair distribution of resources which was tilted in favour of promoting the interests of White people. The denial of resources waslargely economical with the effect and perhaps also the aim of achieving a lowered social status for Blacks. Education received special attention from this policy and the existing imbalances and disparities bear testimony to the success of that policy. As an example, a school equipped with hi tech computer equipment, well stocked libraries and state of the art facilities serves the socio economic interests of its community far better than a school without these facilities. 19. This disparity was recognised when democracy dawned in this country and the Constitution specifically contains provisions aimed at redressing the so called wrongs of the past. Mahomed J stated in Shabalala & Others v Attorney General of the Transvaal and Another 1996 (1) SA 725 (CC) at p740 paragraph 28: [T]he constitution contains, in material respects, a new and fundamental commitment to human rights and is not merely a contemporisation and incremental articulation of previously accepted and entrenched values shared in our society. Workers in general have an interest to ensure that their children do not suffer from the same ills that afflicted them as a result of the skew policies of the past. It is for this reason that the views by Professor Maree commend themselves to me. COSATU s demands to redress disparities and imbalances in education are nothing more than legitimate criticism of a failure to redress these disparities and a quest to find solutions to the economic and social ills bedevilling education in the Western Cape. 20. Myburgh JP stated in the BSA judgement (supra) at 518 E F : In a nutshell : the purpose of the Act does not necessarily require an expansive or liberal interpretation of section 77, in the sense that the

9 exercise of the right to protest action must be restricted as little as possible. The Labour Appeal Court s restrictive interpretation injunction on section 77 cannot be construed as excluding COSATU s demands from the ambit of socio economic interests of workers within the definition of protest action. Furthermore, section 1 of the Act, provides that The purpose of this Act is to advance the economic development, social justice, labour, peace and the democratisation of the work place by fulfilling the primary objects of this Act. I am, therefore, of the view that COSATU s demands are indeed designed to serve the socio economic interests of its members and of workers in general.protest action to advance these demands certainly enjoys the protection afforded by section 67 provided that the further requirements in section 77 are complied with. 21. There is a procedural aspect to this matter Mr Arendse raised during argument which deserves consideration. He argued that during the NEDLAC process Applicant never objected to the discussions on the basis that COSATU s demands did not relate to the socio economic interests of workers. This argument relates to the timing of an application for a declarator whether certain demands fall, or advance the socio economic interests of workers. As both counsel conceded, this Court is not precluded, at any stage, from considering this issue. Good faith prescribes that this issue be raised for determination at the appropriate time and forum before a lot of water has passed under the bridge. 22. I am of the view that because NEDLAC s role in protest action is central, it is at that level that its power or jurisdiction to consider certain issues, must be tested. It would have served the interests of all if an interdict had been sought against NEDLAC to prevent it from considering COSATU s demands as issues relating to the socio economic interest of workers. It is at that time appropriate for this Court to consider the issue and make its declarator before further steps in the process are taken. CONSIDERED BY NEDLAC : 23. It is correct that section 77 has four formal requirements. In terms of section 77(1)(a) the intended protest action must have been called by a registered federation of trade unions.there was no argument that this requirement was not complied with. COSATU is a registered Federation of Trade Unions as defined in the Act. The second requirement is that in terms of section 77(1)(b) a notice must have been served on NEDLAC stating the reasons for the protest action and the nature of the protest action. This is also an aspect where there has been no argument suggesting non

10 compliance and I also hold the view that this section has been complied with. COSATU served the requisite notice on NEDLAC on 3 March The matter giving rise to the intended protest action must have been considered by NEDLAC in terms of section 77(1)(c) and that in terms of section 77(1)(d) at least fourteen days before the commencement of the protest action, the federation must have served a notice on NEDLAC of its intention to proceed with the protest action. There is no argument that section 77(1)(d) was not complied with. Notice of COSATU s intention to proceed with the protest action was given to NEDLAC on 23 April Were the issues giving rise to the protest action considered by NEDLAC? Considering this requirement in the BSA judgement, Myburgh JP said at page 532: If protest action may be proceeded with whilst all the parties at NEDLAC are still committed to consider the matter giving rise to the dispute in order to resolve it, the purported regulation of that exercise of the right to protest action becomes meaningless. Why refer the matter giving rise to the dispute to NEDLAC in order to resolve it, if protest action may take place regardless of whether the issue has been resolved or not at NEDLAC. The answer must be consistent with the purpose of section 77, namely the regulated exercise of the right to protest action. This consistency is achieved if the requirement to consider in order to resolve in section 77(1)(c) is interpreted so that it is only met once it becomes clear that any one or more of the parties at NEDLAC is not committed to resolve the matter in dispute anymore. Only when that is clear, may the next step, the section 77(1)(d) notice, be proceeded with. 26. These views affirm the stance that this Court should not countenance conduct by a party who superficially goes to NEDLAC in order to deadlock. However it is equally correct that a party cannot be tied to a process which, though ongoing, has no potential whatsoever of resolving the dispute. In this case the issues giving rise to the proposed protest action were tabled at three NEDLAC plenary meetings. During these meetings extensive discussion of the issues took place but no resolution was in sight. It is correct that further

11 discussion on these issues was recognised and remains possible, to date. It cannot however be doubted that the discussion of these issues at NEDLAC amounted to a consideration of the issues within the contemplation of section 77(1)(c). 27. The issues raised by COSATU were not capable of resolution at NEDLAC or for some time to come. The gist of COSATU s complaint, as I understand it, is that the Applicant is failing to implement adequate measures to redress the imbalances that exist in education. In the discussions that ensued at NEDLAC, Applicant provided information on what it was doing and planning to do to redress the imbalances. COSATU s view remained that whatever Applicant was doing and planned to do was not adequate. In paragraph of its Answering Affidavit COSATU states : A closer analysis of Applicant s programme referred to as annexure E shows that the programme pertains to basic physical facilities and infrastructure only. First Respondent is of the view that attending to basic facilities and infrastructure does not adequately address the need for redress programmes and policies. First Respondent is of the view that in the absence of acceptable norms and standards, a standard or bench mark is crucial to attempt to redress imbalances. The Applicant refers to basic [our emphasis] physical facilities and infrastructure only. The First Respondent finds this extremely problematic as basic facilities would not equate to facilities currently in existence in advantaged communities, and specifically ex model C schools. It is quite clear that due to previous funding and allocation of funds, what is presently provided to model C schools is not basic. It is First Respondent s submission that education that is provided to one sector of the community must be equivalent to that provided to another sector and that to achieve that equality it is the Applicant s duty to engage in or undertake programmes that redress any imbalance or disparity that may exist. 28. NEDLAC was unable to achieve a compromise on the competing stances of the parties. Whilst a proper interpretation of section 77(1)(c) does not permit cosmetic engagement, it equally does not require deadlock on the objective facts, but serious consideration of the issues. I am of the view that during the three meetings called by NEDLAC, especially the meetings of 23 March 1998 and of 15 April 1998, NEDLAC considered the issues giving rise to the protest action within the contemplation of section 77(1)(c). NEDLAC

12 confirmed this fact in its letter dated 7 May 1998 where it says : Please be advised that NEDLAC took the following steps to discharge its obligation in terms of section 77(1)(c) of the Labour Relations Act 1995, to consider the section 77(1)(b) notice served on NEDLAC by the Cosatu Western Cape Region. LIMITATION OF THE RIGHT TO EMBARK ON PROTEST ACTION : 29. Section 77(2)(b) provides that : The Labour Court has exclusive jurisdiction (b) in respect of protest action that complies with subsection (1), to grant a declaratory order contemplated by sub section (4), after having considered (i) the nature and duration of the protest action; (ii) the steps taken by the registered trade union or federation of trade unions to minimise the harm caused by the protest action; and (iii) the conduct of the participants in the protest action. Section 77(3) provides : A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section The Applicant has argued that should I find that the action to be embarked upon complies with section 213 and 77 then I should order that it that it take place on a non school day. Harm to school children and the culture of learning are cited as a basis for this argument. In considering this argument I should also consider another argument to the effect that COSATU has not set out what steps it will take to minimise harm. In effect the Applicant requests this Court to interfere in COSATU s right to embark on protest action. It is correct that the absence of educators is harmful to pupils and to education in general. In this regard it is not disputed that COSATU tendered to minimise harm during its proposed action and it requested a meeting with the Applicant to discuss this aspect. This tender was not accepted but remained on the table. Anyway, my view is that the tender by educators who are members of SADTU, a COSATU affiliate, to make up for lost time is reasonable to mitigate the loss of school time. 31. COSATU s call for protest action and its members participation in that protest action on 11 May 1998 constitutes the exercise of the right to strike, to promote or defend socio economic interests of workers. That right is

13 protected by the constitution and the LRA. It is also recognised by the ILO. The Committee on Freedom of Association states in paragraph 480 of the Digest of Decisions : Organisations responsible for defending workers socio economic and occupational interests should be able to use strike action to support their position in their search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regard to employment, social protection and standards of living. 32. By asking for this type of order, the Applicant seeks to limit COSATU s exercise of a fundamental, constitutionally protected right to strike. The protest action called by COSATU falls squarely within the LRA definition of protest action in section 213. It is a strike, but not for the purpose referred to in the definition of a strike. Section 77(2) confers on the Court the power to make a declarator, the effect of which is to remove the protection afforded by section 77(3), circumstances permitting. The Court is afforded the power to limit the nature or the duration of the strike or protest. In my view the Court must exercise this discretion on the basis of proportionality i.e. weighing up the importance to workers of the matter giving rise to the protest action as against the nature and duration of the strike or protest, taking into account the various matters referred to in sub section 77(2)(b), in much the same way as the Court must assess the constitutional validity of a limitation of a right in legislation in terms of section 36(1) of the Constitution. In S v Makwanyane & Another 1995 (6) BCLR 665 (CC) at p708 paragraph 104 Chashalson P said : The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. 33. By granting and protecting the right to protest in section 77, read with the definition of protest action in section 213 of the LRA, the legislature has contemplated that protest action will cause severe disruption, in this case, to normal schooling. The extent of the disruption would be indicative of the nature and extent of the protest. The nature and extent of the protest must be viewed against the matter or issues giving rise to the protest. Socio economic questions or issues of fundamental concern to workers would necessarily evoke more serious and extensive protest action, than less fundamental or less weighty issues.

14 34. The matter, question or issue giving rise to the protest action, namely, redress of imbalances and disparities in education is of fundamental concern to workers, COSATU and society as a whole. 35. I am not persuaded that this Court should limit the protest action in the manner suggested by the Applicant, or at all, because the limitation is directed to the achievement of an objective, (the broad complaint of severe disruption), which is not a sufficient justification to warrant the limitation of the protest. In any event, the grant of the right to protest contemplates the infringement of the object of the limitation sought by the Applicant. In addition, the limitation sought to be imposed should impair the right to protest as little as possible. Compelling reasons would justify such intervention. None have been provided by the Applicant and certainly, none have been provided which are reasonable or justifiable. For the afore going reasons I dismissed the application with costs. MLAMBO J JUDGE OF THE LABOUR COURT DATE OF HEARING : 8 May 1998 DATE OF ORDER & JUDGMENT : 8 MAY 1998 DATE OF FULL REASONS : 229 September 1998 FOR THE APPLICANT : instructed by FOR THE FIRST RESPONDENT : Thompson Mr Hoffman with Mr Oosthuizen the State Attorney Mr Arendse instructed by Cheadle & Haysom This judgement is available on the internet at