Mon séjour en Afrique du Sud (Cape Town)

A Pretoria High Court Judge on Monday sent a message to the SA National Defence Force that it had a duty to negotiate with military trade unions about matters that affected the working conditions of soldiers.

Judge Eberhardt Bertelsmann granted an urgent interdict to the SA National Defence Union (Sandu) to stop the Department of Defence from continuing with restructuring the SANDF pending the outcome of arbitration.

This means that the SANDF will not be able to go ahead with the redeployment of almost 8,000 soldiers, who were mostly earmarked to go to other government departments.

The application was the latest in a series of legal clashes between the Defence Force and the union. The union had to go to the Constitutional Court for the right to organise itself and receive recognition, as the SANDF was not prepared to recognise workers' rights.

The judge said it was clear that the SANDF had unilaterally adopted a transformation structure similar to that of the Civil Service, but without any prior consultation with a military trade union.

Sandu's request to negotiate with the Department of Defence was ignored, whereafter the union declared a dispute. The outcome of their dispute was pending before the Military Arbitration Board and was expected to be concluded shortly.

The union contended that it had a constitutional right to collective bargaining, but the Department of Defence relied on an earlier ruling by Judge Johan van der Westhuizen that collective bargaining was a freedom and not a right.

Bertelsmann rejected the ruling. He said he was unable to follow Van der Westhuizen's reasoning.

"In the absence of a right to strike, the denial of the right to collective bargaining would emasculate the labour rights protected by the Constitution and trade unions would be left to the whim or fancy of employers with no other recourse," he said.

He said the Constitution expressly elevated the demand to negotiate collectively to a right.

"The decision on which the respondents rely is clearly wrong. The denial of a right to bargain collectively cannot be upheld or condoned. Sandu has a clear right to collective bargaining and the Department of Defence has a clear duty to engage in the collective bargaining process and to await a ruling by the Military Arbitration Board.

"The applicant's rights have been infringed and they are entitled to the order they seek."

Sandu's national secretary Cor van Niekerk said he was overjoyed about the ruling, as it meant that the union would not in future have to run to court every time a dispute arose about its rights.

"I think the Defence Force is now in big trouble because our rights have been violated for the past two years with various policies on service benefits and conditions - including service hours, leave benefits, the merit process and redeployment - being changed unilaterally without consultation.

"This ruling means that all of the changes are unlawful, because none of it was negotiated with us. It also has huge financial implications, and the Defence Force will now have to explain to the Auditor General how they can justify payments on the strength of an unlawful policy.

"They will have to return to the negotiating table. Someone has to take responsibility for the illegal actions of the past two years," Van Niekerk said.