Mon séjour en Afrique du Sud (Cape Town)

A Constitutional Court ruling that union representatives may act for their members came "a day too late" to stop a soldier wounding his commanding officer in a shooting at Kroonstad, the SA National Defence Union said on Wednesday.

In a 62-page judgment on Wednesday, Constitutional Court Justice Kate O'Regan found unconstitutional a provision of the Defence Act's General Regulations of the SANDF and the Reserve preventing troops receiving union representation.

She ordered the section reworded to allow union representation at grievance, disciplinary or military court proceedings, or to redress unjust administrative action or unfair labour practice.

"Unfortunately, this judgment comes a day late," said SANDU acting national secretary Pikkie Greeff.

On Tuesday, a lance-corporal shot Group 24 commanding officer Colonel Johan "Grobbie" Grobbelaar in his office at the Kroonstad military base, critically wounding him.

A military council decided the gunman should be dishonourably discharged with immediate effect. He was arrested and was to appear in the Kroonstad Magistrate's Court on Wednesday.

"These kinds of things will, in future, be preventable," Greeff said.

Good decisions were "more likely to prevail" where a union member was allowed union representation when called on "office bearing" -- one-on-one talks with a commanding officer about issues involving, among others, discipline or work.

Union members trusted their union representatives, even when they advised in favour of the commanding officer.

In their absence, there was unlikely to be a meeting of minds which "could cause incidents like [that in Kroonstad]," he said.

In her judgment O'Regan also ruled that SANDF members may demonstrate over the employment relationship with the department or any matter related to the department -- but not in uniform.

She further found that the SANDU had the constitutional right to engage in collective bargaining with the SANDF.

She ordered that the department of defence -- the employer of SANDF members -- could not withdraw from the Military Bargaining Council (MBC) or implement new policy without exhausting the dispute procedure, nor could it impose conditions for its participation.

In addition, O'Regan ruled it unconstitutional for the minister of defence to appoint all five members of the Military Arbitration Board --to which disputes unresolved in the MBC must be referred.

However, she suspended the declaration for six months and ruled that any existing appointment to the board not be affected.

The judgment was "a landmark decision", said Greeff. "I think it's a turning point in the history of labour relations in the defence force," he said.

Registered in 1999 after a ban on union activity in the military was declared unconstitutional, SANDU went to court in 2001 over the SANDF' unilateral implementation of a new staffing policy.

However, two high court hearings -- later upheld by the Supreme Court of Appeal -- found that the minister was not obliged to bargain with the SANDU and that his withdrawal from negotiations was not unreasonable, given the SANDU's conduct.

The minister argued that he was entitled to implement the new policy in the public interest after pulling out of negotiations over a SANDU's threat of labour unrest, which he viewed as mutinous.

Greeff claimed the department of defence had, since 2003, refused to negotiate on any issue of labour relations in the SANDF.

"This has led to a lot of unhappiness, frustration and demoralisation in the rank and file of the defence force," he said.

Wednesday's judgment overturning the high court and SCA findings meant that the minister and department would "never again be able to abdicate their responsibility" to negotiate with SANDU and its members.

"It is irresponsible for any employer to try and ignore trade unions in its midst. This is what [the minister and department] were trying to do," Greeff charged.

The union was especially pleased about the ruling allowing its members to protest "because it gives us leverage in negotiations... which we didn't have before". It was a tool which could be sparingly, but effectively used, he said.

Greeff estimated that the costs order against the minister of defence, secretary of defence and chief of the SANDF in respect of three high court cases, one SCA hearing and the Constitutional Court matter would "easily" run to R7 million or R8 million.

"Our costs so far are R3.5 million," he said,

"They need to explain to the taxpayer why this unnecessary litigation for four years when all they had to do was act responsibly with the union,"

The defence ministry said it had noted the judgment, was studying it and intended issuing a statement later on Wednesday.