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THE South African National Defence Force Union (Sandu) wants the Constitutional Court to decide once and for all whether the defence minister must engage with collective bargaining.

The union's application for leave to appeal concerns the interpretation of section 23(5) of the constitution, which gives all trade unions, employers' organisations and employers the right to engage in collective bargaining. The application for leave to appeal arose out of three separate cases which were disposed of by the Supreme Court of Appeal in a single consolidated hearing last May and in two judgments in August. All these cases revolved around the interpretation and application of the right of SANDF members to engage in collective bargaining.

These cases also wanted to ascertain whether the duty to engage in collective bargaining was derived from the constitution itself, or from the regulations or constitution of the Military Bargaining Council.

The appeal court ruled that section 23(5) of the constitution imposed no constitutional duty on employers to engage in collective bargaining with trade unions but merely protected trade unions from legislation which interfered with collective bargaining.

The court also ruled that there was no duty on the SANDF to bargain with Sandu, under the constitution or under the regulations of the Military Bargaining Council. It also ruled that the Sandu was not entitled to invoke the right to fair labour practices without challenging the constitutionality of the regulations.

In the application to the Constitutional Court, the union challenges the interpretation of section 25(3) in the appeal court judgment, which did not impose on public employers a duty to bargain with trade unions.

The union is also appealing against six regulations which the appeal court ruled were consistent with the constitution. One of the regulations prohibits a military trade union from affiliating or associating with any labour organisation or military trade unions in other countries.

"The absolute prohibition against association with any military trade unions in other countries deprives military trade unions of the benefits of drawing on the experience and expertise of trade unions who operate in the military environment elsewhere," Johannes Griesel, an attorney acting for the union, said in an affidavit.

Another regulation denies union representatives the right to represent members in grievance or disciplinary proceedings and military court proceedings. The union said this limited its members' rights to fair labour practices, just administrative action and fair criminal trial rights.

Dirk du Toit, an attorney for the SANDF, said the defence force could not risk having divided loyalties, with soldiers affiliated to other trade unions. The constitutional challenge was therefore unfounded, he said.