20 September 2020
The Government should not be permitted to take advantage of the Covid-19 pandemic in an opportunistic manner to avoid its legal obligations of honouring public-service wage increases it had freely and deliberately undertaken to respect.
If this were to be allowed, it would strike at the heart of collective bargaining and industrial peace under the Constitution and the Labour Relations Act.
These were some of the submissions made in a 48-page affidavit by the chief negotiator of the South African Democratic Teachers' Union (SADTU), at the Labour Court this week.
The government is involved in a legal wrangle with public-sector unions over its refusal to honour Clause 3.3 of the Collective Agreement, which refers to the payment of the final leg of the multi-term three-year wage increase agreement signed in 2018.
In the first two financial years, the government honoured the increases, but early this year it refused. It argued that the increases were unaffordable, unlawful and would offend public policy.
SADTU rejected the claims and accused the government of lack of good faith.
In part the affidavit reads: "Government has failed to lead by example in respecting constitutional obligations. It does not come to court with clean hands in efforts to assert the Constitution. Despite its breaches, government wants the court to assist it to avoid legal obligations that it freely and deliberately undertook in good faith.
"It ought not to be permitted to avoid these obligations. If it were permitted, good-faith collective bargaining under the Constitution and the Labour Relations Act 66 of 1995 will be undermined both in the public and private sector."
There was no logic in separating a three-year commitment into clauses that were allegedly lawful and could be lawfully complied.
"… and clause 3.3 that is unconstitutional and cannot be lawfully implemented. Either the Collective Agreement as a whole was unlawful, or it was not."
SADTU criticised the government's attempt to use the Covod-19 pandemic as a basis to avoid its legal obligations, describing this as opportunistic and not sustainable.
"As regards the reliance on the effects Covid-19 pandemic to avoid complete compliance with Clause 3.3 of the Collective Bargaining, I respectfully submit that any impossibility of performance that the court may find, which we deny, is not complete or permanent.
"As a result, it [the government] can only justify adjustment of the timelines within which the obligations may be performed, and not a complete excuse from performing the obligations".
Rejecting the claims by National Treasury that the public-service wage increases were unaffordable, SADTU argued that, Cabinet was aware of the economic conditions when it concluded the Collective Agreement.
"The DPSA [Department of Public Service and Administration] and National Treasury have failed to prove that performance of Clauses 3.3 is objectively impossible. They have also not addressed any staggered or phased manner of performing in terms of the clause. They simply wish to be excused from performing through an assertion of an inability to perform."
Public policy required that the government, acting through Cabinet, should be held accountable to contracts that it concluded in good faith.
SADTU disputed claims made by National Treasury Director-General Dondo Mogajane that the agreement was unlawful, and that the government was coerced into signing it.
"Mr Mogajane is not a member of Cabinet and cannot express any views regarding the offer that is a decision of Cabinet. He was also not involved in the bargaining process and cannot express any views as to what was presented on behalf government."
Regarding the claim that the government was coerced into the agreement, SADTU said it was staggeringly shocking to suggest that Cabinet made an unconstitutional offer because it was threatened by trade unions.
"At the very least, it [the government] controls the law-enforcement agencies to weather any storm. This includes mobilising the South African National Defence Force, if necessary. Cabinet made the offer freely and fully aware of its constitutional obligations."
The government should not use the Constitution to defend its failure to comply with its freely undertaken obligations, SADTU argued.
SADTU further argued that if the court found that the enforcement of the agreement could not be granted, it would be just and equitable to adjust the period for performance to permit a staggered or phased-in compliance.
"Such a remedy would vindicate the rule of law and the principle that contracts freely entered into should be enforced. It would also not undermine collective bargaining and industrial peace."
The matter is pending before the Labour Court. The employer shall file their replying affidavits at the Labour Court by 28 September, 2020.
ISSUED BY: SADTU Secretariat
General Secretary, Mugwena Maluleke: 082 783 2968
Deputy General Secretary, Nkosana Dolopi: 082 709 5651
Media Officer, Nomusa Cembi: 082 719 5157