THE HIGH COURT OF SWAZILAND
CASES NO.341, 764/2007
the matter between:
POLICE UNION …..........................................1ST
THE MINISTER OF
COMMISSIONER OF LABOUR …............................4TH
THE MINISTER OF
Q.M. MABUZA -J
THE APPLICANT : Mr. T. Maseko and Mr. P.
of P.M. Shilubane
THE RESPONDENT :Mr. Fakudze and Mr. M. Vilakati OF Attorney General's
This matter was heard by a full bench comprising of three judges
myself included. The main judgment was delivered on the 31st
2008. At the time I dissented and stated that I would file my reasons
in due course. This unusual derogation from the accepted procedure on
not delivering the judgments together was occasioned by a mistaken
view on my part. I had believed that we were all ad
that we would grant the applications sought. Be that as it may, I now
deliver my reasons.
This application is brought by the Swaziland Police Union and the
Swaziland Correctional Services Union. Initially they were brought
under different case numbers but because the issues therein are
essentially the same between the parties they were consolidated and
heard together for convenience. I shall refer to both unions as the
Applicants. The Respondents have also likewise been re-assigned
The Applicants applied to the Commissioner of Labour (the 4th
Respondent) to register their respective unions under section 32 of
the Constitution of Swaziland 2005 as r^ad with section 27 of the
Industrial Relations Act 2000 (IRA). The Commissioner of Labour
declined to register the Unions citing section 3 of the Industrial
It is this refusal that has led to this application in which the
Applicants seek a declaration of invalidity of:
The pieces of legislation complained of provide as follows:
(a) Section 3 of
the Industrial Relations Act No. 1 of 2000 (as amended)
3. This Act shall
apply to employment by or under the government in the same way and to
the same extent as if the Government were a private person but shall
not apply to:-
(a) any person
serving the Umbutfo Swaziland Royal Force established by the Umbutfo
Defence Force Order, 1977;
(b) The Royal
Swaziland Police Force,; and
(c) His Majesty's
Correctional Services established by Prison Act No. 40 of 1964:
(b) Regulation 19
of the Police Regulations promulgated under the Police Act No. 29 of
1957 which reads:
trade unions forbidden.
19. It shall not
be lawful for a member of the Force to become, or after the expiry
of one month after the promulgation of this regulation to remain a
member of any political association or of any trade union or of any
association having for its objects, or one of its objects the
control off or influence on the pay, pensions, or conditions of
service of the Force:
(c) Section 18 of
the Prisons Act No. 40 of 1964 which provides thus:
membership of trade unions.
18. (1) A prison
officer who is a member of a trade union, or any other association,
the object or one of the objects of which is to control or influence
salaries, wages, pensions or conditions of service of prisons or
conditions of service of prison officers, or any other class of
persons, shall subject to the laws relating to the Public Service be
liable, at the discretion
of the Minister, to be dismissed from the service and to forfeit any
rights to a pension or gratuity.
(2) The decision
of the Minister that a body is a trade union or an association to
which this section applies shall be final.
(3) This section
shall not be deemed to prohibit prison officers from becoming
members of a prison officers staff association as approved by the
Minister by notice published in the Gazette."
Police Act and Prisons Act provide for the formation of staff
associations. On the other hand section 32 of the Constitution
provides as follows:
has a right to -
(a) freely form,
join or not to join a trade union for the promotion and protection
of the economic interests of that worker; and
bargaining and representation."
Applicants decided to form a union because the present staff
association provided for in the aforesaid Acts were not yielding
good results on negotiating salaries shortage of accommodation and
the general welfare of its members effectively.
The Applicants have given Circular No. 2 of 2007 (SWACU 2) as an
example which caused widespread dissatisfaction among the lower
ranks of the force. They contend that this circular does not improve
the status of sergeants and constables. They state that this
demonstrates that the staff associations which are merely internal
structures are not effective for purposes of bargaining for the
general welfare of members of the force. They further contend that
it is practically impossible to challenge the circular through the
presently structured staff associations which are created along
discrimatory lines in the form of Senior Ranks Association,
Subordinate Rank and Junior Staff Associations. They wish to openly
challenge some of the decisions and policies imposed upon them as
well as the validity of Circular No. 2 of 2007 but are afraid of
This categorisation of workers exposes them to division and makes it
impossible to bargain collectively and effectively with the employer
being the Swaziland Government. The members who form part of the
staff association are not elected by these workers nor do they have
any mandate from them. This they allege is demonstrated by the fact
that there is no consultation between the workers and members of the
The Applicants state that this makes it difficult for members of the
force to bargain as a united force because once the seniors have
benefited, the subordinate and junior ranks are left to languish on
their own. Circular 2 of 2007 (Swacu 2) also deals with the issue of
back pay. The senior officers who were negotiating with Government
had their back pay backdated to 1 April 2005 while Warder 1 and
Sergeants to 1 April 2006. There was no explanation for this
The Applicants further state that whenever they attempt to hold
meetings these are disbanded by officers in charge of the facility
wherever the meeting is held. They complain of being subjected to
widespread intimidation and threats of all kinds. Some of the
Applicants' members have been accused of mutiny.
The objectives of the Swaziland Correctional Services Union (SWACU)
are stated in Rule 5 of their Constitutions as follows:
promote, and advance the economic and socioeconomic interests
of its members.
To represent its
members in dispute and conflict management at the workplace.
collectively on behalf of its members.
harmonious industrial relations through dialogue wherever possible.
To open a bank
account in Swaziland for professional and safe keeping of the funds
of the union.
To negotiate and
establish accessible and affordable broad based social security
safety nets for its members.
To promote the
living standards and social welfare of its members.
conflict between the employees and employer amicably where
To organise all
workers within its scope and jurisdiction.
The right to sue
and to be sued."
The objectives of the Swaziland Police Union (SWAPU) are stated in
Article 2 of their Constitution as follows:
"2.1 To set
up an effective negotiation machinery for the purpose of collective
2.2. To regulate
the relationship and to settle disputes between its members and the
employers and between members by amicable agreement wherever
2.3. To provide
legal aid in respect of matters arising out of employment to members
whose monthly subscriptions or any levy which may have been decided.
2.4. To ensure
and improve the standards of living, conditions of service, rates of
pay, social security, academic development and general welfare of
above objectives seem laudable to me.
The Respondents' defence stated in the affidavits of the
Commissioner of Prisons, Mr. Mnguni Simelane and the Commissioner of
Police Mr. Edgar Hillary is that there is no need for the
establishment of a union to deal with the problems of the workers
since there is a staff association through which these problems can
be ventilated and addressed. Mr. Simelane denies that the grievance
handling structures are not effective in presenting work place
problems. He has further stated that if the Applicant(s) feel that
such structures are not effective it is open to them to make
suggestions for their improvement with a view to make them more
He further denies that the categories of the association are not
independent. He states that each category deals with its matters
independently and without any interference by the Commissioner or
any one for that matter. He states that the categorization of the
association actually works to the advantage of the members thereof
since the circumstances of the members vary and if they were in one
category the grievances of some members would not be adequately
addressed. He denies that the categorization of the association
exposes its members to division. To the contrary it makes grievance
handling much easier and efficient.
To Mr. Simelane's affidavit is attached the interim staff
association constitution and rules established under section 18 (3)
of the Prisons Act No. 40/1964. In terms of section 3 (1) of this
document there is established three bodies forming up this staff
Ranks Board Subordinate Ranks Board Junior Ranks Board
object of which:
shall be to
enable members of the service to consider and bring to
of the Commissioner and Government matters affecting
and efficiency of the service other than matters of
affecting individuals and discipline and politics.
is entirely independent of and unassociated with
the Service and its members is confined to Staff
Correctional Services only.
from the present
rules or not included in the rules shall
be referred to the
Commissioner whose decision shall be final
for the sake of
progress in the
work on hand. (My
Simelane's response to "Swacu 2" is that it came as a
result of an appeal lodged by the Senior officers after the
establishment of circular No. 1 of 2005 which had placed them in a
disadvantaged position with regard to their counterparts in the
other disciplined forces to wit the Royal Swaziland Police and
Umbutfo Swaziland Defence Force. The circular (Swacu 2) was merely
implementing the results of the appeal. The senior officers in the
Correctional Services had been graded lower than their counterparts
in the other disciplined forces. Such discrepancy did not exist in
the case of junior officers since the junior officers in all the
forces had been placed at the same grades without any
discrimination. That is why "Swacu 2" only shows an
improvement in the senior officers section and not improvement in
the junior officers section. He concludes by denying that the
apparent lack of improvement in salaries of junior officers is due
to lack of effective representation at the negotiating table.
his replying affidavit Sibusiso Hlatshwayo the chairperson of SWACU
states that what is deposed to herein above in paragraph 15 by Mr.
Simelane, reaffirms the allegations by the Applicant(s) that not all
officers are involved in decision making and in a consultative
process. Had junior officers been represented when the appeal was
made there would have been improvements in relation to them as well
Simelane further re-iterates that if the present structure of the
Staff Association is not effective, it is open to the Applicants to
make suggestions for improvement of such association to make it more
effective. There is no need for the formation of a union when there
is room for improving the present framework of representation and
grievance handling particularly when there is a law prohibiting the
formation of such a union.
The Applicants' response to the contents of paragraph 17 herein
above is that it is not interested in being involved in improving a
structure which is devoid of independence, a structure which is
dominated by senior officers who have no interest in the welfare of
junior officers as clearly demonstrated by "Swacu 2".
Mr. Simelane also denies the accusations of charges of mutiny.
The Commissioner of Police, Mr. Edgar Hillary is the deponent to the
affidavit responding to the Police Union (SWAPU). His affidavit
basically deals with the law forbidding the formation of police
unions and the justification in the public interest of the
limitation of the impugned sections, locally and internationally. He
also deals with the Staff Associations provided for in the Police
Act. A pertinent response is found at paragraph 14.2 of his opposing
affidavit page 64 which reads:
Constitution recognises that the Royal Swaziland Police is a
disciplined force. The RSP, in common with most police forces,
depends upon the strictest discipline in order to effectively
discharge its constitutional mandate of preserving the peace,
preventing and detecting crime and apprehending offenders.
of the Police Force will weaken the rigorous obedience to authority,
without which the RSP cannot meet its
affidavits of both Commissioners is supported by the affidavit of
Mr. Lutfo Dlamini, the current Minister for Enterprise and
Employment (The Minister). He basically re-states the declarations
adopted by the International Labour Organisation (ILO). The Minister
informs us and this is common cause between the parties, that there
are two ILO Conventions that deal with freedom of association and
the right to collective bargaining. The first, is the Freedom of
Association and Protection of the right to Organise Convention, 1948
(Convention 87) and the other is the Right to Organise and
Collective Bargaining Convention, 1949 (Convention 98).
Minister goes on to state that both these Conventions give states a
wide margin of appreciation in deciding the extent to which the
guarantees provided therein shall apply to the armed
forces and the police.
That the Committee on Freedom of Association (CFA) which was set up
by the ILO to examine complaints about freedom of association has
decided that states having ratified Conventions 87 and 98 are not
required to grant the guarantees therein to members of the armed
forces and police.
He further states that the
exclusion of members of the Royal Swaziland Police
the application of the Act (Industrial Relations Act 2000) was
informed by Conventions 87 and 98 as well as decisions of the CFA.
Both Conventions have been ratified by Swaziland. (My emphasis).
same affidavit by the Minister supports the affidavit of the
Commissioner of The Correctional Services Mr. Simelane. It is worth
noting that the Minister only mentions the police and armed forces
of the Correctional Services in his affidavit. This omission is in
my view very significant and informs the Court that the Government
is not adverse to the Correctional Services forming a union or a
similar organisation. In fact in the "Report of the ILO High
Level Mission to Swaziland concerning the application by Swaziland
of ILO Conventions on Freedom and Association" ("Annexure
Swacu 5") at page 2 thereof in respect of Article 2 of the
Convention this is what is said: "The Committee notes the
Government's statement that it is considering the question of
including prison staff within the scope of application of the
Industrial Relations Act (IRA). The report and its contents have not
been denied by the Respondents.
I am deliberately isolating the Correctional Services because it
seems to me that even though their concerns are similar with those
of the Police Force, the attitude of the relevant Government
authorities is different to that of the Police. Prima facie its
seems that the authorities do not seem to mind the unionisation of
the Correctional Services or a similar organisation.
The Applicants argue that the provisions of the Police Act and the
Prison Act are draconian colonial and archaic and not consistent
with an open just and honest democratic society.
In as much as the arguments were primarily based on section 39 (3)
it is obvious to me that there is a general complaint about the
arbitrary use of power by the 1st
Perhaps one should address the issue. It is correct that the Police
Act and the Prisons Act give the Commissioners certain powers but
the exercise of those powers must now find validation in the
Constitution. This country has moved from a parliamentary
sovereignity where public functionaries exercised virtually
unlimited power to constitutional supremacy where such exercise of
power is controlled by the Constitution. The Police Act and Prisons
Act may be used as a guideline but the real control is now in the
Constitution. For a discussion of the control of the use of
arbitrary power see the judgment of Sachs J in the Minister
of Health and Another v New Clicks South Africa and 7 Others Case
The Applicants contend that their rights under the constitution have
been infringed and these rights are.
before the law (section 20)
right of freedom of expression and opinion (section 24 of the
right to freedom of peaceful assembly and association (section 25
of the Constitution)
right of freedom of movement (section 26 of the Constitution)
right to freely form, join or not to join a trade union for the
promotion and protection of the economic interests of that worker
(section 32 (a) of the Constitution.
right to freedom to collective bargaining (section 32 (b) of the
The Applicants contend that the Constitution is now the supreme law
of the land and that being so, the legislation complained of must be
struck down on the grounds of inconsistency with the Constitution.
They further argue that the coming into force of the Constitution
places the Kingdom of Swaziland into a position where the
fundamental rights of all citizens must be guaranteed, promoted,
protected and fulfilled without distinction. The Applicants further
argue that the prohibition on members of the disciplined forces to
form, join and belong to a trade union of their choice is clearly
unconstitutional on the ground that it offends provisions of the
Bill of Rights.
is common cause that in interpreting the bill of rights a two stage
approach is used: an enquiry stage and a justification stage. The
parties accept that there is no need to traverse the enquiry stage
that the only relevant issue is justification. They also accept that
the onus is on the Respondents see Ferreira
v Levin N.O. 1996 (1) SA 984 CC at
paragraph 44 per Ackerman J:
"The task of
determining whether the provisions of [an] Act are invalid because
they are inconsistent with the guaranteed rights here under
discussion involves two stages, first an enquiry as to whether there
has been an infringement of the ... guaranteed right; if so a
further enquiry as to whether such infringement is justified under
the limitation clause ... Concerning the second stage, [it] is for
... the party relying on the legislation to establish this
justification ... and not for the party challenging it, to show that
it was not justified."
The Respondents have submitted that this limitation or restriction on
the disciplined forces to form a union is reasonable and necessary
given the provisions of section 39 (3) of the Constitution read with
section 39 (6). Section 39 (3) reads:
to a person who is a member of a disciplined force of Swaziland,
nothing contained in or done under the authority of the disciplinary
law of that force shall be held to be inconsistent with or in
contravention of any of the provisions of this Chapter."
39 (6) reads:
"(6) In this
chapter, unless the context otherwise requires -
law"' means law regulating the discipline of any disciplined
an air, military
or naval force;
Royal Police Service;
It is further submitted that the rights of the Applicants have been
limited and or restricted because of their unique professions as
disciplined forces and in the public interest. The constitution
provides for the limitation of
by way of a general limitation clause. This clause is found in
section 14 (3). Abridged this clause states:
person shall be entitled to the fundamental rights and freedoms of
the individual contained in this chapter but subject to the respect
for the rights and freedoms of others and for the public interest".
Respondents further submit that the "public interest"
criterion calls for the courts to make a value judgment about which
interests are important and protected by the Constitution and which
are not. The value judgment so the argument goes is not made on the
basis of a judge's personal values and the Court is directed to the
dictum of Mahomed C.J. in the case of Ex parte Attorney-General,
Namibia: In Re Corporal Punishment by organs of State 1991 (3) SA 76
(Nm SC) at (91 D-E):
"it is ... a
value judgment which requires objectively to be articulated and
identified regard being had to the contemporary norms, aspirations,
expectations and sensitivities of the Namibian people as expressed in
its national institutions and its Constitution, and further having
regard to the emerging
consensus of values in a civilised international community which
Namibians share. This is not a static exercise. It is a continually
evolving dynamic. (Emphasis added by Counsel).
They argue that the issues herein are whether section 3 (b) and (c)
of the Industrial Relations Act, 2000 is in the public interest and
whether it is reasonably justifiable in a democratic society. They
have directed the Court to invoke International Law as an aid to
submit that one of the purposes of the Industrial Relations Act is to
give effect to international labour standards and cite section 4 (1)
(j) which states that:
of this Act is to ... ensure adherence to international labour
relevant International Labour standards are incorporated in the
Freedom of Association and Protection of the Right to Organise
Convention, 1948 (Convention 87) and the Right to Organise and
Collective Bargaining Convention 1949 (Convention 98)
9 (1) of Convention 87 states:
" The extent
to which the guarantees provided for in this Convention shall apply
to the armed forces and the police shall be determined by national
laws or regulations'."
Convention 98 states:
" The extent
to which the guarantees provided for in this Convention shall apply
to the armed forces and the police shall be determined by national
laws or regulations'. "
I must point out that these articles do not refer to the Correctional
Services nor does the Committee on Freedom of Association in the
digest published by International Labour Organisation. The digest
deals with freedom of association of the armed forces and police and
excludes Correctional Services (see paragraphs 223 to 226 thereof).
The Respondents conclude that the emerging consensus of values in
International Labour Law sanctions the complete bar on police
officers forming trade unions. They therefore submit that section 3
(b) and (c) of the Industrial Relations Act is in the "public
interest" as envisaged by section 14 (3) of the Constitution and
therefore constitutionally sound.
I disagree that the emerging consensus of values in International
Labour Law sanctions the complete
police officers forming trade unions. This is not true instead it
leaves it within the discretion of each state with the proviso that
members of the armed forces who can be excluded from the application
of Convention 87 should be defined in a restrictive manner.
The Respondents have helpfully provided resource material of
international and comparative law to buttress their arguments for
which the court is most grateful. They have done a comparative
analysis of various countries where there is a complete bar on trade
union activity within police forces namely Botswana, Namibia, Canada
and the United Kingdom but not in neighbouring South Africa. They
have not provided a similar analysis with regard to the World's
Correctional services. It would seem that the quoted countries do not
have similar restrictions with regard to their correctional services.
The Respondents merely repeat their earlier argument which is based
on section 39 (3) of the Constitution as read with section 39 (6)
with regard to the Correctional Services.
argument goes on further to state that section 39 (3) shields a
disciplinary law of a disciplined force from constitutional review.
They further state that the prohibition on membership of a trade
union in the Correctional Services is a disciplinary law of the
disciplined force. More so in that it contains the expression
"nothing contained in or done under the authority of ... shall
be held to be inconsistent with or in contravention of any of the
provisions of this Chapter
they conclude that section 39 (3) is not in conflict with Chapter III
rights, it creates a legitimate limit on the rights granted by the
Constitution. Therefore, there is no need to harmonise section 39 (3)
with constitutional rights whose application it is intended to
On the justification of the limitation the Applicants have submitted
that it is a cardinal principle of constitutional interpretation that
where two provisions of a constitution seem to be in conflict with
each other, the Court will not declare the offending provision
unconstitutional but will apply the principle of harmonization. This
principle dictates that the court should lean in favour of the
interpretation that will protect the rights as opposed to the
restrictive one. To buttress his arguments Mr. Maseko referred us to
inter alia the case of United
Democratic Movement v President of the Republic of South Africa 2003
(1) SA 495 (CC) where it was said: "It would be extraordinary to
conclude that a provision of the Constitution cannot be enforced
because of an irreconcilable tension with another provision. Where
there is a tension, the courts must do their best to harmonize the
relevant provisions and give effect to all of them".
The situations are not similar. In casu
regulation has been elevated to the status of an entrenched
constitutional provision as opposed to two competing constitutional
provisions having equal status. I have discussed this anomaly later
on in my judgment. Mr. Maseko also referred us to the South
African Defence Force Union v Minister of Defence 1999
(4) SA 469 (cc) (Sandu 1). But in Sandu 1, the contentious issues
were an Act
of Parliament v the Constitution. Consequently
this Court's hands are tied. It is only Parliament who can reverse
this dreadful imposition on the fundamental rights of the Applicants.
The question which remains is whether the Respondent has discharged
its onus of justification of the limitation or restriction. Mr.
Maseko refers to it as neither a limitation or a restriction but a
total bar. During submissions I put a question to Mr. Fakudze who
co-represented the Respondents as to whether the Applicants had been
informed that their constitutional fundamental rights would be
limited or restricted. And whether their rights embodied in section
32 (a) would be totally barred. His response was an emphatic no. Mr.
Fakudze was a member of the Constitutional Drafting Committee. The
impression conveyed by him was that nobody ever thought that the
Applicants would someday claim their constitutional rights at the
time. It seemed to be in order for the Constitutional Drafting
Committee to arbitrarily interfere with the Applicants rights with
impunity by inserting section 39 (3) without any consultation.
to say Parliament did not debate section 39 (3). It would serve no
useful purpose to consult Hansard or the relevant Parliamentary
tapes. We do not have a limitation clause which freely stands alone
in our Constitution. There is no harm in using the South African
limitation clause as an aid to analysis. Section 36 (1) of the South
African Constitution provides that:
in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors
the nature of the
the importance of
the purpose of the limitation,
the nature and
extent of the limitation;
between the limitation and its purpose; and
means to achieve the purpose."
need not go through each factor. The one most relevant is what
is the purpose of section 39 (3)? The
best that Mr. Vilakati could say was that the limitation, restriction
and or bar was justified in the public interest in terms of section
14 (3). The next question is: what
is the meaning of the clause in the public interest in
of this case. This aspect was not addressed. Even the framer of the
Constitution Mr. Fakudze was not of much assistance in this respect.
Nobody seems to know what the purpose of section 39 (3) is or was
except that it is safely shielded from a declaration of invalidity.
The Applicants further stated that the prohibition was necessary in
that if the Unions were allowed to exist, there would be erosion of
obedience to authority.
hold a different view. On the contrary if unions are allowed to exist
there will be no erosion or obedience to authority because there
would be collective agreements with guidelines on how to conduct
themselves as agreed to between themselves and their employer. During
February 2008 members of the police union threatened to go on strike.
They were stopped by order of court (see Civil Case 341/2007,
unreported). A possible revolt by members of the Applicants is
totally unnecessary: This was a wake up call for all stakeholders.
The fear of strikes by the state could be a possible reason for
depriving the Applicants of their fundamental rights and the
insertion of section 39 (3). The Committee on
of Association of the ILO has stated that member states may prescribe
the manner in which such rights may be exercised and that where a
member state has decided to preclude the police force from being
unionised, such exclusion may be given a restrictive interpretation.
This directive rests solely in the hands of the line Ministers as I
is no doubt that the police and members of the correctional services
need a strong and effective body to negotiate better living standards
and terms and conditions of service. During December 2006 the current
Prime Minister, Mr. A.T. Dlamini toured the police stations
countrywide. He also inspected the living conditions of the police.
His tour was reported widely in the media, radio and electronic
media. The living conditions were appalling and shocking to say the
least. It is in the public interest that these security forces who
serve the public should have access to decent living conditions, fair
terms and conditions of service and adequate remuneration. Having
their own mouthpiece is long overdue and they should not be deprived
of their rights upon a weak excuse that allowing them to excercise
their rights would affect discipline and obedience to authority.
There is further no doubt that section 18 of the Prisons Act and
Regulation 19 of the Police Act deprive these security forces of
their fundamental rights and are repugnant to good governance and the
rule of law and particularly that the sanction for joining or forming
a trade union is dismissal which is a disciplinary measure. The
subsequent entrenchment in section 39 (3) of these regulations does
not lend any credence to the aspirations embodied in the preamble of
the Constitution. If the preamble is to be believed these impugned
pieces of legislation which are old archaic discriminatory and
oppressive should have been excised from our laws. They are
inconsistent with the provisions of Chapter III of the Constitution.
They should be declared null and void. They have no place in a
What then is the way forward? I have in mind three methods:
is that of excising section 39 (3) and section 39 (6) of the
Constitution as suggested by my brothers Mamba J and Annandale J. The
difficulty that I see with this method in the short term is that it
is entrenched and obtaining the required majority of both houses of
Parliament will be no easy feat.
is that section 32 (2) of the Constitution embodies two separate
"(2) A worker
has a right to
freely form, join
or not join a trade union for the
promotion and protection of the
economic interests of that
bargaining and representation."
The Police Act (regulation 19) and the Prisons Act (section 18)
forbid members from joining or forming trade unions. A case on all
fours with the issues raised in casu is the case of South
African National Defence Union v Minister of Defence and Another 1999
(4) SA 469 (CC) (known
as Sandu 1). The judgment of O' Regan J who wrote for the full bench
is most instructive.
That case concerned the question whether it was constitutional to
prohibit members of the armed forces from participating in public
protest action and from joining trade unions. The Constitutional
Court was adjudicating on an order referred it by the Transvaal High
Court, wherein the learned judge had declared certain provisions of
the Defence Act 44/1957 to be unconstitutional and invalid. It is
important to determine what the Constitution means by worker in
section 32 (2). Unfortunately the section is not as inclusive as its
South African counterpart, section 23 (2). However, the learned judge
in the Constitutional Court used inter alia the Conventions and
recommendations of the International Labour Organization (ILO) as an
important resource for considering the meaning and scope of "worker"
as used in section 23 of the South African Constitution. In their
submissions herein Counsel referred us to the same conventions to use
as an International Law resource.
is what the learned judge had to say in Sandu 1 in the following
2 of the Freedom of Association and Protection of the Right to
Organise Convention 87 of 1948, the first major Convention of the ILO
concerning freedom of association, which South Africa ratified in
1995, provides that:
employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organisation
concerned, to join organisations of their own choosing without
Article 9 (1) of
the same Convention provides:
to which the guarantees provided for in this Convention shall apply
to the armed forces and the police shall be determined by national
laws and regulations."
It is clear from
these provisions, therefore, that the Convention does include 'armed
forces and the police' within its scope, but that the extent to which
the provisions of the Convention shall be held to apply to such
services is a matter for national law and is not governed directly by
the Convention. This approach has also been adopted in the Convention
on the Right to Organise and Collective Bargaining 98 of 1949. 17
(17) which South Africa also ratified in 1995. The ILO therefore
considers members of the armed forces and the police to be workers
for the purposes of these Conventions, but considers that their
position is special, to the extent that it leaves it open to member
States to determine the extent to which the provisions of the
Conventions should apply to members of the armed forces and the
 If the
approach of the ILO is adopted, it would seem to follow that when
section 23 (2) speaks of 'worker', it should be interpreted to
include members of the armed forces."
adopt the above interpretation for purposes of this case. In casu
interpretation of the word "worker" would include members
of the police force and members of the correctional services.
That being so, the Applicants who are "workers" are
entitled to the second right of section 32 (2) (b), that of
bargaining and representation. To
this end they need not form or join a trade union. The right to
collective bargaining and representation is not prohibited by the
Police Act and Prisons Act. To enable the Applicants to freely pursue
this aspect of their rights this Court would have to declare section
3 (b) and (c) of the Industrial Relations Act No. 1 of 2000
inconsistent with the Constitution and invalid. There is no legal
constraint or prohibition on this Court from so doing. This would
enable the Applicants to pursue measures within the Industrial
Relations Act which would best regulate the relations between them
and their employer the Government. This would also be commensurate
with section 4 (1) (e) of the Industrial Relations Act which provides
for the protection of the right to collective bargaining.
is to be found in section 268 of the Constitution which provides
existing law, after the commencement of this Constitution, shall as
far as possible be construed with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring it into
conformity with this Constitution"
Section 18 of the Prisons Act and Regulation 19 of the Police Act
fall under the disciplinary section of both Acts respectively. They
are in the regulation sections of the Acts. Regulations constitute
delegated legislation which falls within the purview of the Ministers
responsible for either the Correctional Services or the Police Force.
The Prime Minister is responsible for the Police Force and the
Minister for Justice and Constitutional Affairs for the Correctional
Services. These line Ministers are responsible for passing the
are by their nature flexible and amenable to speedy amendment. Not so
an Act of Parliament. The reason for delegating regulations to the
responsible line Ministers was to avoid having to go to Parliament
each time some need arose for amendment. The Ministers responsible
have powers under the aforementioned regulations which powers have
not been removed or revoked by section 39 (3). The Ministers
concerned can continue to make regulations, amending, modifying,
qualifying or adapting the said regulations in order to bring them
into conformity or harmony with the Constitution.
The particular regulation that forbids the members of the Police
Force and that of Correctional Services from joining trade unions was
deliberately placed under the regulations section to allow for
flexibility and easy amendment in order to accommodate modern trends.
With regard to the Correctional Services I indicated earlier in my
judgment that the International Labour Conventions do not refer to
Correctional Services. Even the Honorable Minister Mr. Lutfo Dlamini
in his supporting affidavit does not mention the Correctional
Services. Both factors indicate that there is no objection in
principle to members of the Correctional Services forming or joining
unions. This therefore makes it easier for the line Minister to
effect the necessary amendments or changes envisaged in section 268
of the Constitution.
Finally, I align myself with the following remarks by O' Regan J in
case is concerned primarily with the right to form and join trade
unions ...There can be no doubt of the constitutional imperative of
maintaining a disciplined and effective ...force. I am not persuaded,
however, that permitting members of the ... force to join a trade
union, no matter how its activities are circumscribed, will undermine
the discipline and efficiency of the ...force. Indeed it may well be
that in permitting members to join trade unions and in establishing
proper channels for grievances and complaints, discipline may be more
enhanced than diminished. Whether this proves to be the case will
depend, of course on a variety of factors, including the nature of
the grievance procedures established, the permitted activities of
trade unions in the ... force, the nature of the grievances
themselves and the attitudes and conduct of those involved."
I would therefore urge the Prime Minister and the Minister for
Justice and Constitutional Affairs to exercise their powers in terms
of the Police Act and Prisons Act respectively to amend, modify,
adapt and or qualify the regulations therein to conform with the
International Labour Organisations Conventions and to conform to
modern trends in a democratic society in meeting the Applicants'
expectations and fulfilling their constitutional rights.
have indicated that I consider section 3 (b) and (c) of the
Industrial Relations Act 2000 to be inconsistent with section 32 (b)
of the Constitution. The latter section is not included in Regulation
19 of the Police Act nor in section 18 of the Prison Act. Section 3
(b) and (c) is hereby declared to be inconsistent with the
Constitution and invalid. Because the Applicants have been partially
successful the Respondents are ordered to pay half of their