Section 2(a) of the Labour Relations Act, 66 of 1995 does not apply to personnel employed by the South African National Defence Force (SANDF).
How do you resolve a labour dispute involving members of the SANDF?
This is a situation the SANDF faced following wildcat strikes embarked upon by some members who were unhappy with some of their conditions of service during the course of 2009. The legislature responded to this situation by introducing a number of different dispute-resolution mechanisms available to individuals and groups as detailed below.
INTERNAL REMEDIES
The Department of Defence gazetted an Internal Grievance Procedure to resolve labour- related matters. The Procedure was Gazetted on 14 October 2016 in Government Gazette No. 40347.
These regulations are made under the Defence Act No.42 of 2022 and detail the process to be followed internally for the resolution of a dispute and relate to the process to be followed for individual grievances.
The procedure enables members of the SANDF to refer their grievances to:
1. Unit Officer Commanding
2. The Formation Officer Commanding
3. The Service or Division
4. Grievance Committees
5. The Grievance Board
The designated grievance office is tasked with administering the grievance process.
EXTERNAL REMEDIES
The Office of the Military Ombud
The Military Ombud Act 4 of 2012 created the Office of the Military Ombudsman and details the jurisdiction of the office to investigate and resolve complaints made by both members of the South African National Defence Force and where applicable, members of the public relating to the remuneration and working conditions of members of the South African National Defence Force.
According to Section 4(1) of the Military Ombud Act, the office of the Military Ombudsman is empowered to investigate complaints lodged in respect of a member or a former member of the SANDF in relation to his or her conditions of service or official conduct or by a person acting on behalf of such a member or former member as the case may be (E.g. an attorney).
The “mission” of the Military Ombudsman is to provide an independent & impartial resolution of complaints from the SANDF & members of the Public.
Despite the Act being promulgated in 2012, many legal practitioners need to be aware of the mechanism that provides for the resolution of individual complaints to correctly and accurately advise their clients employed by the SANDF concerning the resolution of any concerns they may have about their own conditions of service.
The Office of the Military Ombudsman reports to parliament regularly (annually). It must account for the number of complaints it has received, how many have been resolved, and how many remain unresolved for the relevant reporting period.
The Office of the Military Ombudsman has wide-ranging powers to investigate complaints referred to it and is not to be taken lightly, with a complaint resolution rate of over 80% the office is very efficient.
In the event that the Office of the Military Ombudsman does not have jurisdiction to investigate, it will make a referral to another institution. Defence Force Military Service Commission
One institution to which the Military Ombud may make a referral is the Defence Force Military Service Commission (DFSC), The commission was established in terms of Regulations published in Government Gazette 38359 on 19 December 2014.
Per Regulation 8, the DFSC has jurisdiction to enquire into issues concerning the condition of service of the members of the SANDF.
The commission makes recommendations to the Minister of Defence and Military Veterans but sadly does not have the power to enforce these recommendations.
The Military Bargaining Council
Another institution to which the Military Ombud may make a referral is the Military Bargaining Council, having said this, the Military Bargaining Council is most suited for the resolution of collective issues capable of being resolved by reaching a collective agreement and is perhaps not the most appropriate forum for the adjudication and resolution of individual concerns regarding conditions of service.
The South African National Defence Union (SANDU) recently, reached the threshold the required threshold qualifying it to partake in the Military Bargaining Council should the dispute fall within its mandate.
The applicable regulations gazetted in Government Gazette No. 20425 on regulations mostly apply to conflicts capable of being resolved via collective bargaining culminating in a collective agreement.
The overlap in the functions of the Office of the Military Ombudsman, the Defence Force Military Service Commission and the Military Bargaining Council has recently been noted as a concern by the legislature, a situation that could have been avoided had they made clearer in their delineation of the duties of each office when drafting the relevant regulations. It is hoped that these overlaps will be eliminated in future to avoid duplication of effort andwastage of resources, something our country can ill-afford at this time.
For any assistance with obtaining filling in and lodging the necessary complaint or referral forms for any one of the abovementioned dispute resolution processes please call our office at 011 784 8984 or email info@thomsonwilks.co.za.
View our full post including works cited on www.thomsonwilks.co.za.
Works Cited:
SANDU - SA National Defence Union, https://www.sandu.co.za/. Accessed 17 February 2023.
“☕️.” YouTube, 10 August 2022, https://gazettes.africa/akn/za/officialGazette/government-gazette-regulation-gazette/2014-12-19/38359/eng@2014-12-19. Accessed 17
February 2023.
“Defence Act 42 of 2002.” South African Government, https://www.gov.za/documents/defence-act. Accessed 17 February 2023.
ERASMUS, CHRISTINA SUSANNA. “Government Gazette Staatskoerant.” Government Gazette Staatskoerant, 19 June 2020,
https://archive.opengazettes.org.za/archive/ZA/2020/government-gazette-ZA-vol-660-no-43445-legal-notices-A-dated-2020-06-19.pdf. Accessed 17 February 2023.
“Labour Relations Act 66 of 1995.” South African Government, https://www.gov.za/documents/labour-relations-act. Accessed 17 February 2023.
“Military Ombud 2021 Annual Activity report; Minister of Defence on implementation of recommendations for Defence Force Service Commission | PMG.” Parliamentary
Monitoring Group, 2 June 2022, https://pmg.org.za/committee-meeting/35119/. Accessed 17 February 2023.
“Military Ombud Act 4 of 2012.” South African Government, https://www.gov.za/documents/military-ombud-act. Accessed 17 February 2023.
“South Africa Government Gazette (Regulation Gazette) vol 616 no 40347 dated 14 October 2016 (Page 1).” Open Gazettes South Africa,
https://search.opengazettes.org.za/text/12399?page=1. Accessed 17 February 2023.
“Strikes by soldiers place national security at risk - Sisulu.” South African Government News Agency, 26 August 2009, https://www.sanews.gov.za/south-africa/strikes-
soldiers-place-national-security-risk-sisulu. Accessed 17 February 2023.
23 February 2023
