- A Department of Defence employee challenged the refusal of her application for temporary incapacity leave.
- An arbitrator ruled that the bargaining council could not hear the case because she worked within the SANDF.
- The Labour Court found that being appointed under the Public Service Act meant she was not military personnel excluded from the Labour Relations Act.
An employee of the Department of Defence who worked within the South African National Defence Force was not automatically a military member excluded from the Labour Relations Act. This is the finding of the Labour Court in Cape Town.
The judgment concerns Lucinda Booysen, a Military Intelligence Assistant who challenged the refusal of her application for temporary incapacity leave. Her employer argued that the General Public Service Sector Bargaining Council could not hear her dispute because she was a member of the SANDF.
Booysen, represented by the Public Servants Association, referred an unfair labour practice dispute relating to benefits to the bargaining council on 6 November 2023.
The Department of Defence challenged the council’s jurisdiction, relying on section 2(a) of the Labour Relations Act, which excludes members of the National Defence Force. It also argued that Booysen had not completed the internal grievance procedures required for military personnel.
On 27 July 2024, Commissioner Patrick N Stilwell ruled that the bargaining council lacked jurisdiction and found that the evidence showed Booysen was a member of the SANDF.
The Public Servants Association then approached the Labour Court to have this decision reviewed and set aside, arguing that the commissioner had ignored documents proving Booysen was employed under the Public Service Act.
Her appointment placed her under the Public Service Act
Booysen’s appointment letter, dated 2 May 2013, clearly identified her as Public Service Act Personnel in the Department of Defence.
She was permanently appointed as a Senior Administration Clerk in the Administration Line Functions and Support Personnel category at the Joint Operations Division Tactical Headquarters in the Western Cape.
Her appointment letter and the conditions of service referred to the Public Service Act, public service regulations, collective agreements and the Labour Relations Act. These also set out her leave entitlements, including temporary disability leave under Resolution 7 of 2000.
The Public Servants Association argued that Booysen was a civilian employee working within the SANDF and not Defence Act Personnel. The association said her grievance was governed by Public Service Coordinating Bargaining Council Resolution 14 of 2002, not the grievance regulations that apply to military personnel.
Acting Judge LX Dzai looked at the distinction between military members and civilian employees under the Defence Act 42 of 2002. The law defines a member of the Defence Force as an officer or other rank, while an employee is someone appointed to the Department under the Public Service Act.
The judge said that public service employees can serve in positions within the Defence Force without automatically becoming military members. Section 15(1)(b) of the Defence Act, for example, allows certain powers to be delegated to public service employees serving in Defence Force posts.
The judge said, “The considerations on which the commissioner relied do not establish membership of the Defence Force.” The court found that Booysen’s workplace, her intelligence-related duties and her attachment to the SANDF did not show she was an officer or other rank in the military.
The commissioner also failed to consider her appointment letter, conditions of service and written submissions before deciding the bargaining council had no jurisdiction. The judge said the real question was not which department Booysen worked in, but whether she was a member of the National Defence Force.
Based on the evidence, the court found she was an employee appointed under the Public Service Act and did not fall under the exclusion in section 2(a) of the Labour Relations Act.
Bargaining council can hear the dispute
Judge Dzai found that the commissioner had misunderstood the jurisdiction issue by relying on Booysen’s workplace and job functions, rather than her employment status. The court also noted the commissioner had not decided whether PSCBC Resolution 14 of 2002 or the Individual Grievances Regulations under the Defence Act applied to her case.
The department’s argument that Booysen had not completed the required internal grievance procedures also remained unanswered. The judge said that these issues, along with the temporary incapacity leave dispute, must be decided by the bargaining council.
In a judgment delivered on 11 November 2026, Judge Dzai reviewed and set aside the jurisdiction ruling. The court replaced it with a ruling that the General Public Service Sector Bargaining Council has jurisdiction over the dispute the Public Servants Association brought on Booysen’s behalf.
The matter was sent back to the bargaining council for a new arbitration before a different commissioner. There was no order for costs.
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