CCT65/06

[2007] ZACC 10

2007 (5) SA 400 (CC)

2007 (8) BCLR 863 (CC)

(2007) 28 ILJ 1909 (CC)

O'Regan J

30 May 2007

http://hdl.handle.net/20.500.12144/2673

Application for leave to appeal against the judgments and orders of the SCA in SANDU I, SANDU II and SANDU III, reported as: South African National Defence Union v Minister of Defence and Others; Minister of Defence and Others v South African National Defence Union and Others 2007 (1) SA 402 (SCA); 2007 (4) BCLR 398 (SCA) and Minister of Defence and Others v South African National Defence Union; Minister of Defence and Others v South African National Defence Union and Another 2007 (1) SA 422 (SCA).

Application from the Supreme Court of Appeal against findings that the Constitution did not impose a duty to bargain and findings of constitutional validity of regulations made in terms of the Defence Act. It was held that where legislation had been enacted to give effect to a constitutional right, a litigant was not entitled to bypass that right and rely directly on the constitutional right. Regulations were enacted to give effect to s. 23 of the Constitution which did impose a duty to bargain. It was therefore not necessary to determine whether s. 23(5) of the Constitution confers a justiciable duty to bargain. The Court held that SANDF may not impose pre-conditions for bargaining nor can they unilaterally withdraw from the Military Bargaining Council. The Court considered the constitutionality of each regulation in question and made a ruling on them. Majority: O'Regan J (unanimous).