“Counsel for Parliament, Mr Gauntlett SC, submitted that one must first look at the Constitution of the Republic of South Africa, 1996 (‘the Constitution’) to find out if Parliamentarians are in law ‘employees’ for the purposes of the PDA.   A Member of a legislature, he argued, holds an office, not a job: their attributes of independence; the lack of contractual relationship; their occupation of an office; and, their lack of subordination to any cognisable employers could all be regarded as factors used to indicate that Members of the legislature are not ‘employees’”.

Harry Charlton served as the Chief Financial Officer to Parliament from 1 May 2002 and was permanently appointed to the position on 1 March 2004.   After Charlton alleged misconduct by some members of Parliament relating to their alleged misuse of travel benefits, his services were terminated on 13 January 2006 after a disciplinary enquiry.   Charlton applied to the Labour Court for relief alleging that the disclosures were ‘protected disclosures’ in terms of the Protected Disclosures Act 26 of 2000 and that his dismissal was consequently automatically unfair.   He also contended that his dismissal was unfair.   An order was granted in his favour by the Labour Court – Charlton v Parliament of SA [2007] 10 BLLR 943; [2007] JOL 20090; (2007) 28 ILJ 2263 (LC) per Ngcamu AJ.

The Labour Appeal Court allowed the appeal, set aside the order of the Labour Court and replaced it with an order staying the proceedings and referring the dispute to arbitration by the CCMA.

Patel JA, in Parliament of SA v Charlton ZALAC 13 (dated 21 July 2010), stated in para [23]:

“This case raises a novel issue as to whether parliamentarians are ‘employees’ or ‘employers’ as defined by the PDA.   The outcome of this case will not only have an impact on the parties involved, but it will also affect the public.   This court is mindful of the doctrine of separation of powers, which holds that the judiciary’s function is to interpret the law and apply it even if the conclusion may lead to reprehensible conduct escaping scrutiny.   Ultimately, this case hinges on statutory interpretation.   In essence, this court must decide whether or not the application of ‘employer’ or ‘employee’ as defined in the PDA should be extended so as to include MPs”.

Patel JA continued as follows:

“[26]    Parliament consists of two Houses, namely the National Assembly and the National Council of Provinces.   Section 42(3) of the Constitution provides that the National Assembly is elected to represent the people and to ensure government by the people under the Constitution.   The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government as stated in s 42(4) of the Constitution.   Section 43 of the Constitution further provides that legislative authority vests in Parliament.

Are lawmakers ‘employees’?

[27]      To subject MPs to the PDA may, in practice, run the risk of frustrating the democratic process.   An extension of the application of ‘employee’ under the PDA to include MPs might cause statutes to become more complex.   MPs ought to be entirely independent.

[28]      Parliamentarians hold an office.   In terms of s 48 of the Constitution they take an oath whereby they affirm their faithfulness to the Republic and obedience to the Constitution.   MPs have a statutory right to remuneration under the Remuneration of Public Office Bearers Act 20 of 1998.   Parliamentarians, like judges, are subject to their own codes of conduct.   MPs are elected into office.   It could never be suggested that a MP could have recourse to the Labour Courts if he or she lost his or her seat after an election.   MPs also enjoy certain privileges that do not extend to ordinary citizens.   All of these features further support the contention that MPs are not bound by the PDA”.

After further consideration of the issues the LAC decided that MPs are excluded from the LRA and the PDA.

With regard to the question of whether lawmakers are ‘employers’ the LAC stated as follows:

“[32]    The definition of ‘protected disclosure’ in the PDA specifically mentions certain categories of persons to whom the PDA applies.   One specific category is a member of Cabinet or the Executive Council.   If Parliament had intended to include MPs within the ambit of this definition then it would have clearly done so.

[33]      Parliament submitted that parliamentary staff are answerable to the Secretary of Parliament and not to MPs.   This point is important.   Parliamentarians must be allowed to focus on their constitutional duty to make law.   An MPs portfolio ought not to be cluttered with the additional and onerous responsibilities of being an ‘employer’ of parliamentary staff.   This would hinder the effective performance of their duties and functions.   This court accordingly finds that MPs are not included in the PDA”.