Touted as the best legal brain in South Africa by Mail & Guardian of South Africa and The Guardian of United Kingdom and credited with changes to the legal system in his homeland, Advocate Wim Trengove SC, instructed by local attorneys Mboki Chilisa and Tshiamo Rantao, is expected to mesmerize court tomorrow arguing for reinstatement of over 3000 dismissed essential service public servants.
On government’s side, another sharp legal mind in advocate Anton Myburgh SC will lead the appeal against the reinstatement ordered by the High court last year. It is the last hope for thousands of dismissed essential service workers who were not re-employed after the ill-fated 2011 public sector strike over salary increment.
Recognising the gravity of the matter, the parties have imported some of the best legal brains from neighbouring South Africa.
Advocates Trengove SC and Alec Freund SC, and Martin Brassey SC will appear for the dismissed workers while government has engaged the services of Myburgh SC and advocate Tembeka Ngcukaitobi. A full bench of five judges is expected to hear the matter, which has attracted huge public interest. In anticipation of a large attendance, Court 8 and 9 and an extra space at the Court of Appeal have been combined to accommodate the crowd.
On 16 May 2011, some 3000 Essential Service employees (ESE) were dismissed, 80 percent of them being from health services for participation in a strike, which ran from 18 April to 12 June 2011.
Government is appealing against Justice Dr Key Dingake’s judgment of June 2012 where he found that the essential service employees were unfairly dismissed and should be reinstated to their positions within 14 days. But lawyers from Collins, Newman & Co representing government immediately appealed and successfully interdicted the workers from returning to work pending the appeal.
In the grounds of appeal government argues that Dingake erred in finding that the dismissals were unlawful because the employer had not afforded the employees some form of hearing, let alone issue “show cause why” letters to the unions representing them. Government insists that it complied with the codified attenuated form of hearing (audi) applicable to an illegal strike because her obligation to involve the unions did not arise at the dismissal stage but earlier on.
“That the unions fully ventilated their bases for contending the strike was legal is a matter of common causes,” advocate Myburgh argues.
He posits that the unions deliberately forfeited the opportunity of engaging over dismissals, at meetings with the employer because of the strategy they had developed, only for them to change strategy on May 16 and insidiously claim breach of the audi rule. Further, he accuses the unions of failing to engage their members in ESE to stop striking and return to work after the Industrial court orders of 26 April and 6 May 2011. Therefore, he said, there was no need for government to issue a ‘letter to show cause why’ to the unions because such had been served by inviting them to meetings where they were afforded an opportunity to persuade government that an ultimatum was inappropriate.
In counter, Trengove says government failed completely to give effect to the audi principle, a sufficient and proper basis to dismiss the appeal, adding that it is not necessary to determine in detail what form and sequence of audi would have sufficed. The fact that government apparently urged the unions to encourage their members to return to work whilst negotiations continued cannot be construed as an offer to the unions of an opportunity to make representations on whether the ESEs should be dismissed, he says.
Union lawyers insist that dismissals were invalid for want of compliance with the rules of natural justice (in more modern parlance the duty to act fairly), and the provisions of the Public Service Act. It has also emerged that the then Director of Public Service Management, Festina Bakwena, misled the employees by announcing at the commencement of the strike that only 30 percent of all essential services employees were precluded from striking, without identifying them.