The SCA allowed the appeal and overturned the judgment of Salie-Hlophe J in the High Court and amended the order by setting aside orders (iii), (iv), (v) and (vi) made on 31 August 2015.
MEC for Social Development, WC v Justice Alliance of SA (1054/2015) [2016] ZASCA 88 (1 June 2016) per Fourie AJA (Mpati P, Saldulker, Mbha JJA and Victor AJA concurring)
SCA summary:
Establishment of child and youth care centres in terms of s 195 of the Children’s Act 38 of 2005 – involves decisions which are polycentric and policy-laden in nature – intervening therewith undermines the doctrine of separation of powers – the requirements for the establishment of child and youth care centres not met.
Excerpts
[21] What the WCC further failed to appreciate is that the transfer of the centres from the WCED to the WCDSD, would involve the transfer of the employees from their current employment with the WCED to the WCDSD. This process would impact on the terms and conditions of their current employment and thus require a labour relations process to be undertaken, including an organisational design process to determine equivalent job descriptions and gradings, and negotiation with the relevant labour unions and bargaining councils. Obviously no process of this nature had taken place and orders (iii) – (v) ought therefore not to have been made.
[22] It appears that the provisions of s 14(1) and (3) of the Public Service Act 103 of 1994, were also overlooked by the WCC. The effect of these subsections is that a public sector employee may be transferred from one department to another, when the public interest so requires, provided that the approval of the persons who, in respect of each of those departments, have the power to transfer, must first be obtained, and after meaningful and proper consultation with the employee concerned has taken place.
(See Public Servants Association of South Africa v Minister of Department of Home Affairs & others [2012] ZALAC 35; [2013] 3 BLLR 237 (LAC) paras 70 and 83-84.)
In effect orders (iii) – (v) granted by the WCC amounted to a transfer of employees of the WCED to the WCDSD, without compliance with s 14 of the Public Service Act.