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The SA National Defence Force must negotiate its transformation with the SA National Defence Union in the Military Bargaining Council, the Constitutional Court ruled on Wednesday.

In a judgment for the court, Justice Kate O'Regan found that the department of defence may not withdraw from the Military Bargaining Council (MBC) without following its dispute procedure.

It could also not impose conditions for its participating in the MBC, or apply a new policy without exhausting the bargaining procedures.

SANDF permanent force members were banned from joining a trade union until May 1999, when this was declared unconstitutional.

The SANDU, representing a third to a quarter of all SANDF members, was registered in June 2000 and was admitted to the newly-established MBC in October that year.

By then, the SANDU had already indicated to the SANDF that transformation should be subject to negotiation and consultation.

O'Regan said it was clear the department of defence and the SANDU found bargaining "frustrating and painful".

While the department accused the union of "bad faith bargaining", the union was angered by a perceived failure to address its concerns.

In September 2001, the SANDU threatened "national labour unrest". The defence minister said this would be treated as mutiny, and suspended negotiations pending the withdrawal of the threat.

When the SANDU learned that October of the SANDF's unilateral introduction of a new staffing policy, it immediately withdrew its threat, asked that the policy be reversed and requested talks.

Instead of resuming bargaining, the defence minister said he would do so only if the SANDU submitted to mediation, and if an agreement was reached on the "manner and form" of collective bargaining.

He held that he was entitled to implement the new policy in the public interest.

The SANDU took the matter to court. On two occasions it was found -- and upheld by the Supreme Court of Appeal -- 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.

In overturning these findings on Wednesday, O'Regan held that the general regulations of the SANDF and the Reserve "neither contemplate that an employer may withdraw from the MBC, nor that either party may unilaterally impose preconditions for participating at the MBC".

The regulations provided that disputes which could not be resolved in the MBC be referred to the Military Arbitration Board (MAB) for determination.

"What is clear from the regulations is that, if the department is aggrieved at the conduct of the union parties at the MBC, it may declare a dispute and pursue that dispute to its end.

"The department did not follow this route. Instead, it sought unilaterally to withdraw from the MBC and to impose conditions for its return. The regulations do not permit the department to do this."

O'Regan said that although the SANDF was still trying to implement its unilateral new staffing policy in 2003, it had since indicated that it no longer wished to do so.

However, finding that a similar dispute might arise in the future, she ruled that the SANDF was not entitled to unilaterally implement a policy about the permissible bargaining topics in the regulations before the dispute resolution process had run its course.

She could not find that the SANDF and department of defence were "duty-bound" to bargain on the content of the regulations, because these were law, but went on to declare certain of them unconstitutional.

This included the regulation preventing SANDF members from demonstrating over the employment relationship with the department or any matter related to the department.

O'Regan also declared that the union had the right to represent its members at grievance, disciplinary or military court proceedings, or to redress unjust administrative action or unfair labour practice.

She further found it unconstitutional for the minister of defence to appoint all five members of the MAB, but suspended the declaration for six months and ruled that any current appointment to the board not be affected.