A lot is at stake. In fact everything in the case between the Attorney General and three public sector unions is at stake.It is about the dismissal from work of government employees deemed as essential service workers because they were involved in a strike proclaimed to be illegal by the Industrial Court. Some employees were re-employed by government but a good number of them find themselves unemployed.
The case is before five judges at the Court of Appeal (CoA). Justice Key Dingake of the High Court has set the tone. In his judgement last year he ruled that all dismissed essential service employees be reinstated. He also found that classifying teachers, veterinary officers and diamond sorters as essential workers was unconstitutional.Now it is for the five judges to either uphold or overturn the judgement.
The case thrusts the Court of Appeal into a historic labour relations’ showdown that could define the scope of future industrial actions.
This may include how the two partners (Unions and Government) handle future dialogue to avert similar scenarios. This Monday attorneys crossed swords trying to outwit each other. It was a case not to be missed. Anticipating the magnitude of public interest that the case has attracted CoA employees created more room.
The sliding walls that divided two courtrooms were drawn back and one big room was created. But still the space was not enough in the now larger newly built High Court building as scores of dismissed workers and sympathisers thronged it. People came early in the morning. More people streamed in. They sat on the floor while a good number remained standing because of lack of space.
Early birds: MPs Dumelang Saleshando and Daniel Kwelagobe occupied the front row talking quietly. Kwelagobe is a perennial attendee since the case’s days at the lower court. Some of the journalists had to find space in the accused dock and they chatted about the case whilst waiting for the judges to come in and start the proceedings.
The conversation would later change to the Patriot on Sunday Newspaper which on Sunday failed to go to print because its printers apparently refused to honour their contractual agreement with the paper.
On the other hand legal brains started to drift in. This is no ordinary case. A lot is at stake. According to information from the trade unions at least 500 of its members are still roaming the streets. Should the unions win the case this will mean more trust from their members, notes BOPEU’s General Secretary Topias Marenga. It will also mean that 500 employees will get their jobs back.
But this will come at a cost to the government. Unions are praying for a reinstatement not reemployment. Should the judges grant the unions their wishes government will have to pay millions of pula to the said employees as back pay for the months the employees remained without getting a salary. Justice Dingake has called for a reinstatement.
Both unions and government have instructed Senior Counsels from South Africa to argue the case. There were as many as 11 lawyers on the bar on Monday. This included junior lawyers to Senior Counsels from South Africa. On the side of unions were, Advocate Wim Trengove and Advocate Martin Brassy. Union’s lawyers, Mbakiso Chilisa and Tshiamo Rantao have engaged the two.
On the other hand Senior Counsel Anton Myburgh represented government working under the instruction of Collins Newman & Co. He had Parks Tafa and Lawrence Khupe in tow. Labour law was discussed at length. Administrative law as well. Myburgh on Monday pleaded with Court of Appeal judges to overturn Dingake’s judgement.
He noted that at the heart of their appeal lies Section 27 (1) and (2) of the Public Service Act 30 of 2008, which reads in part: An employee who is guilty of serious misconduct shall be summarily dismissed from the public service on the basis of that serious misconduct.
The advocate argued that a strike by essential service employees, particularly in health services, is the quintessential example of when an employer cannot reasonably be expected to hold a disciplinary enquiry.
“This is because, by definition, such a strike gives rise to a crisis emergency. In the circumstances, the employer was absolved of the obligation to conduct a disciplinary enquiry,” he argued. Myburgh blamed trade unions for failing to intervene and ensure that essential service employees return to work following a court order that declared their strike illegal. As the lawyers argued on and on some people started to doze off.
A police officer sitting behind the judges also unwittingly took a nap. “The respondents were under a positive obligation to intervene and ensure return to work of the employees, “ argued Myburgh. But advocates representing the unions maintained that it was wrong to dismiss employees without according them a proper hearing.
They argued that the employers could have been expected to consider in the course of such a hearing whether the ultimate sanction of dismissal was appropriate in the circumstances. “That will not require no more than an afternoon discussion with the unions,” argued Advocate Martin Brassy.
And when the panel of five judges begins reading the judgment at a later date there will be more at stake in the unfolding drama than the judgment. Court of Appeal judge president, Ian Kirby admitted that the case was complex. “This is a complex matter, it will take time to debate among ourselves,” he said.
Lord Alistair Abernethy and Judge Monametsi Gaongalelwe flanked Kirby on the left while Justice Nick McNally and Justice Isaac Lesetedi sat on his right hand side. Now is a waiting game.