The Constitutional Court today confirmed that not all staff employed by the South African Police Service (SAPS) are prohibited from striking. Johan Botes, director in Employment at Cliffe Dekker Hofmeyr business law firm said the Court confirmed the decisions of the Labour Appeal Courts and Labour Court holding that only those SAPS members employed under the South African Police Service Act (SAPS Ac”) are engaged in providing essential services under the Labour Relations Act 66 of 1995 (”the LRA). Sections 65(1)(d)(i) and 71(10) of the LRA prohibits employees engaged in essential services from engaging in strike action.

“In its appeal to the Constitutional Court, the SAPS argued that all staff employed by the SAPS, including administrative personnel engaged under the Public Servants Act (the PSA) deliver essential services and should thus be barred from partaking in industrial action. The main advantage for the SAPS as an employer to such a finding would be that it would be able to curb disruptions to its operations caused by striking workers. Employees engaged in essential services have to submit their disputes to arbitration and are not permitted to flex their collective muscle by downing tools in an effort to force their employer to meet their demands. An arbitrator determines matters of mutual interest that are in dispute in essential services – which is in sharp contrast with the position in other services or industries where workers can withhold labour when the collective bargaining process fails to bring about the desired result.”

Botes says section 23(2)(c) of the Constitution grants all employees the right to strike. This right is then limited in section 65(1)(d)(i) of the Labour Relations Act where employees engaged in essential services are prohibited from taking part in strike action (or being locked out by their employer). This limitation of the right to strike should be interpreted restrictively, the Constitutional Court confirmed in its judgment today.

“The South African Police Service is listed as an essential service in the definition of such a service in the Labour Relations Act. Other examples include the Parliamentary service and a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population,” he notes.

The Constitutional Court stated further that it could not fault the Labour Appeal Court when the latter held that not all employees employed by the SAPS are engaged in essential services. The appeal brought by the SAPS was dismissed.

Botes add, “The Constitutional Court’s judgment confirms the sanctity of the right to strike – a hard-fought right that is part of the very fibre of our employment law framework. The judgment reinforces the central role that collective bargaining plays in the workplace. Employers seeking to avoid the pitfalls of collective bargaining may have to look elsewhere than classifying its service as an essential service in the light of this judgment.”

For more information:
Johan Botes, Director, Employment, Cliffe Dekker Hofmeyr,
Tel: +27 (0)11 562 1124 or email: johan.botes@dlacdh.com

Andrea Collocott, Head: Marketing, Cliffe Dekker Hofmeyr,
Tel: +27 (0)11 562 1281 or email: andrea.collocott@dlacdh.com <mailto:andrea.collocott@dlacdh.com>

Angela Graham, Tel: 084 245 245 2 yeahwrite@worldonline.co.za <mailto:yeahwrite@worldonline.co.za>

Notes:
Cliffe Dekker Hofmeyr is one of the largest commercial law firms in South Africa with some 115 directors/partners and 250 qualified lawyers located at offices in Johannesburg and Cape Town.

Cliffe Dekker Hofmeyr lawyers specialise in services covering the complete spectrum of business legal needs in 11 core areas of practice. The firm also has dedicated sector-led teams consisting of lawyers with experience in a wide range of industries and the public sector.

Cliffe Dekker Hofmeyr is the South African member firm of DLA Piper Group, an alliance of legal practices, which includes firms with offices around the globe that are affiliated to members of the DLA Piper Practice but are not themselves members of it.

Cliffe Dekker Hofmeyr's Africa practice, in conjunction with DLA Piper Africa Group, is unrivalled in terms of pan-African legal services and geographical coverage.

DLA Piper is an international legal practice with over 3,500 lawyers located in 30 countries and 69 offices throughout Asia, Europe, the Middle East and the US.

For further information, please visit www.cliffedekkerhofmeyr.com