CASE NO: CCT 89/10 In the matter between:
SOUTH AFRICAN POLICE SERVICE Applicant
and
POLICE AND PRISONS CIVIL RIGHTS UNION First Respondent
ZIZAMELE CEBEKHULU Second Respondent
RESPONDENTS’ PRACTICE NOTE
1 COUNSEL APPEARING For the Applicant:
GJ Marcus SC 083 452 5105
K Pillay 082 337 7117
For the Respondents:
JG Van der Riet SC 082 450 2285
H Barnes 072 518 5504
2 THE NATURE OF THE PROCEEDINGS
This is an application for leave to appeal against the judgment of the Labour Appeal Court per Waglay DJP dated 3 September 2010 (“the LAC Judgment’)
3 THE ISSUES THAT WILL BE ARGUED
The issue to be argued and decided is whether the essential service contemplated by the Labour Relations Act 66 of 1995 (“the LRA”) in relation to the South African Police Service (“SAPS”) is limited to SAPS members or whether it extends to employees employed under the Public Service Proclamation 103 of 1994 (“PSA employees”).
4 PORTIONS OF THE RECORD THAT ARE NECESSARY FOR THE DETERMNATION OF THE MATTER
The entire record
5 ESTIMATE OF THE DURATION OF ORAL ARGUMENT 4 to 5 hours
6 SUMMARY OF THE RESPONDENTS’ ARGUMENT
6.1 The Respondents submit that the Applicant’s construction, to the effect that the essential service contemplated by the LRA in relation to the SAPS includes both SAPS members and PSA employees, is without foundation on both a textual and a principled level.
6.2 The Applicant’s construction finds no support in the provisions of the SAPS Act, the provisions of the LRA or the contents Explanatory Memorandum which accompanied the Labour Relations Bill (and which the Applicant relies on in its Heads of Argument). On the contrary, all of the above measures are more consonant with the LAC’s finding that only the SAPS members are engaged in an essential service in terms of the LRA and are therefore prohibited from striking.
6.3 The Applicant’s construction, if accepted, would violate the applicable ILO principles and, in particular, the
requirement that essential services be restrictively interpreted to include only those services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population.
6.4 Furthermore, the ILO has drawn a distinction between members of the police and armed forces and civilians working in these institutions and stated that while the rights of the former (including the right to strike) may be limited in appropriate circumstances, the rights of the latter may not be. The Applicant’s construction, if accepted, would violate this principle too.
6.5 The Applicant’s construction would prohibit all PSA employees from striking, simply by virtue of the fact that they provide services for the SAPS, regardless of the nature of the services they provide. This goes way beyond the carefully tailored limitation on the right to strike sanctioned by the ILO and on which the provisions of the LRA are predicated. The Applicant
has not made out a case to the effect that this extensive limitation on the right to strike could be justified in terms of section 36 of the Constitution. In our submission, it could not be. The Applicants construction would accordingly result in the violation of section 23(2)(c) of the Constitution. We will submit that the Applicant’s construction may also violate the constitutional equality clause.
6.6 The Respondents will conclude that there is no merit in the Applicant’s contentions and that the LAC Judgment was plainly correct.
7 LIST OF AUTHORITIES ON WHICH PATICULAR RELIANCE WILL BE PLACED DURING ORAL ARGUMENT
None
