Archive for the Constitutional matters Category

Must a municipality supply free water to its inhabitants?

Posted in Basic rights, Constitutional matters with tags , , , on October 30, 2009 by Maggie

We recently discussed the Supreme Court of Appeal’s decision regarding the unconstitutionality of aspects of the water policy of the City of Johannesburg. This decison has now been considered by the Constitutional Court.

There were two main issues for consideration by the Court. Firstly whether or not the City’s policy (which gave the residents of Phiri, free of charge, 6 kilolitres per household per month or 25 litres of water per person per day) was unreasonable in terms of the Constitution and / or the Water Services Act, which had been promulgated to give effect to the constitutional right of access to sufficient water. The second concerned the lawfulness of the pre-payment meters.

The Court clarified that the City was not under a constitutional obligation to provide any particular amount of free water to citizens per month but rather that it was “under a duty to take reasonable measures progressively to realize the achievement of the right”. Thus the Court concluded that the policy of the City was not unreasonable and that the pre-payment meters were not unlawful being empowered by law, procedurally fair and not unfairly discriminatory.

The Court dealing with the importance of litigation around the area of socio-economic rights, considered the detail of what the government is required to do in order to meet the standard of reasonableness in these terms:

“The purpose of litigation concerning positive obligations by social and economic rights should be to hold the democratic arms of government to account through litigation. In so doing, litigation of this sort fosters a form of participative democracy that holds government accountable and requires it to account between elections over specific aspects of government policy. When challenged… the government agency must explain why its policy is reasonable. Government must disclose what it has done to formulate the policy: its investigation and research, the alternatives considered, and the reasons why the option underlying the policy was selected. …Simply put, through the institution of the Courts, government can be called upon to account to its citizens for its decisions. This understanding of social and economic rights…. accords with the founding values of our Constitution.” (Emphasis added).

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Are there any limits to the Constitutional court’s jurisdiction in labour matters?

Posted in Constitutional matters with tags , , , on January 29, 2009 by labourlawoffices

Section 167 of the Final Constitution provides that the Constitutional Court (“the Court”) may decide only constitutional matters and issues connected with decisions on constitutional matters. The legal term jurisdiction means the power vested in a Court by law to adjudicate upon, determine and dispose of a matter.

If the Court does not have jurisdiction it will refuse to hear and consider the merits of a matter at all. Once the Court has determined that it has jurisdiction it grants leave to appeal if it is in the interest of justice to grant leave to appeal. This process entails some consideration of the prospects of the merits of a case.

The Court has on a number of occasions adjudicated on labour matters. The Court does not have the power to review every decision by the Labour Court simply in the basis that the decision might be wrong and therefore in violation of the rule of law. It would seem that the Court is inclined to find jurisdiction for itself in those cases governed by statutes which were enacted to give content or effect to a constitutional right, or otherwise to meet the legislature’s constitutional obligations.

In a most recent Constitutional Court case workers challenged the authority of the Supreme Court of Appeal to decide the question whether the commissioner had jurisdiction in respect of the dispute between the parties. In addition, they challenged the finding by the Court of Appeal that the real dispute between the parties was whether an exemption from a Bargaining Council agreement related to wages, relied upon by the employer, had been validly granted by the Bargaining Council.

The findings and conclusions of the Court of Appeal as well as the challenges to such findings and conclusions raised important questions concerning the role of commissioners in resolving labour disputes and that of the Court in overseeing the arbitration process the Court held. These questions go to the jurisdiction of commissioners to resolve labour disputes and that of the Courts to review arbitral awards. The Court held that these questions manifestly raise important constitutional issues which affect the resolution of labour disputes. The question whether the commissioner adjudicated the real dispute between the parties is an issue connected with a decision on a constitutional matter, the Court held.

The Court went on to find that the issues raised in the case were matters of public interest. The case concerned the enforcement of a Bargaining Council agreement which sets out minimum wages and other conditions of employment and requires the Court to apply the provisions of the LRA.

The right of every trade union and every employers’ organisation and employer to engage in collective bargaining is entrenched in Section 23 of the Constitution. The concomitant of the right to engage in collective bargaining is the right to insist on compliance which the provisions of the collective agreement which is the product of the collective bargaining process the Court pointed out.

Compliance with a collective bargaining agreement is critical not only to the right to bargain collectively through the forum constituted by the Bargaining Council, but it is also crucial to the sanctity of collective bargaining agreements. The right to engage in collective bargaining and to enforce the provisions of a collective agreement is an especially important right for the workers who are generally powerless to bargain individually over wages and conditions of employment. The enforcement of collective agreements is vital to industrial peace and it is indeed crucial to the achievement of fair labour practices which is constitutionally entrenched, the Court held. The Court concluded that the case raised important questions concerning the roll of arbitrators and that of Courts in overseeing the arbitration process. For these and other reasons considered, the Court was satisfied that the application for leave to appeal raised a constitutional matter.

The minority decision is this case took a different view of what constitutes a constitutional matter. Relying on Section 33 of the Constitution which provides that everyone is entitled to administrative action that is lawful, reasonable and procedurally fair the minority held that a Court in considering a review, or an appeal in respect of a review, of the CCMA in terms of the LRA is obliged to interpret its powers in the light of Section 33 of the Constitution.

The question relating to the power of the Court of Appeal to of its own accord raise an issue that appears on the face of the record before it and which goes to the jurisdiction of the CCMA, the Court held needs to be considered in the light of Section 33 of the Constitution. The further question that required consideration is whether the award falls to be set aside because the commissioner failed to apply her mind to the terms of the exemption concerned. The minority held that the question whether an arbitrator has applied her mind to an issue before her is a question that needs to be considered in the light of Section 33 of the Constitution. For the minority, both questions thus raised constitutional matters within the jurisdiction of the Court.

The minority admitted that a review of a decision of the CCMA will always need to be undertaken in the light of the right entrenched in Section 33, and will therefore generally involve a constitutional matter. Whether it is in the interest of justice for the Court to entertain such an appeal, however, would only occur if the matter at hand raises a matter of particular constitutional importance the minority went on to hold.

The majority Court’s grounds for holding that the issues concerned a constitutional matter require further consideration. If it is clear that the enforcement of a bargaining council agreement materially affects the right to engage in collective bargaining or any other right in the Bill of Rights, its interpretation will give rise to a constitutional issue. Where, however, the interpretation is concerned with a provision that does not affect the right to engage in collective bargaining nor any other right entrenched in the Bill of Rights, but concerns substantive terms and conditions which have been negotiated, it does not follow that a constitutional issue is automatically engaged.

In the particular case, the primary dispute insofar as it related to the bargaining council agreement, turned on whether the wage provisions of the 1998 main agreement applied to the employer or whether an exemption granted in 1997 exempted the employer from those provisions. This does not necessarily raise a constitutional matter. There is no provision in the constitution which is directly relevant to the interpretation of either such main agreement or the exemption; nor can it be said that either of the interpretations for which the parties contended gave greater or lesser effect to the provisions of the Bill of Rights. The exemption itself contained in the main agreement is not legislation that falls to be interpreted in a manner consistent with the spirit, purport and objects of the Bill of Rights.

The enforcement of all collective agreements does not automatically raise a constitutional matter. While the rule of law requires that all binding obligations be enforced, it does not mean that the enforcement of all binding obligations necessarily raises a constitutional matter. The LRA carefully provides procedures to ensure that collective agreements are enforced. Those procedures have not been challenged as inadequate or unconstitutional.

The Constitutional Court should therefore be careful to recognise that the constitution establishes it as a court that has jurisdiction in constitutional matters only; not as a general court of appeal in all matters. The Court has not always respectfully observed those limits placed on its jurisdiction.