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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 645/2011

In the matter between:
MINISTER OF PUBLIC SERVICE
AND ADMINISTRATION

Appellant
and
MIRRIAM JABULILE NGWENYA

Respondent

Neutral citation: Minister of Public Service and Administration v
Ngwenya (645/11) [2012] ZASCA 109 (29 August
2012)
Coram:
MPATI P, NUGENT, PONNAN, MALAN and WALLIS
JJA.
Heard:
23 August 2012
Delivered: 29 August 2012
Summary: Resolution of the Public Service Bargaining Council and
Public Service Dispensation Determination – interpretation – jurisdiction
of high court – power of court to order amendment of collective
bargaining agreement and consequent determination.

ORDER

On appeal from: Gauteng North High Court (Webster J sitting as court
of first instance) it is ordered that:
The appeal is upheld with costs and the order of the court below is altered
to one dismissing the application with costs.

JUDGMENT

WALLIS JA (MPATI P, NUGENT, PONNAN and MALAN JJA
concurring)
[1] Ms Ngwenya, the respondent, is employed by the Department of
International Co-operation and International Relations. Early in 2011 she
was told that she had been posted to the South African diplomatic mission
in Norway, which would require her to live in Oslo for the following four
years. She wanted to take her two grandchildren, the children of her two
daughters, with her, because as the only family member in employment
she had been responsible for their maintenance and upbringing. In order
to facilitate this she entered into parental rights and responsibilities
agreements, under s 22 of the Children’s Act 38 of 2005, with her
daughters in respect of her grandchildren, which permitted her to take
them to Norway and to arrange for their education and religious
upbringing as well as obliging her to maintain them.

[2] On the footing of these arrangements Ms Ngwenya claimed to be
entitled to receive in respect of each of the grandchildren the children’s
allowance afforded to persons in the foreign service who are appointed to
posts abroad. The Department of International Co-operation and
International Relations referred the application to the Department of
Public Service and Administration, which is the department responsible
for issues relating to the benefits of public servants. It rejected the request
because the relevant collective agreement and ministerial determination
did not permit Ms Ngwenya to receive the children’s allowance. Ms
Ngwenya accordingly instituted the present proceedings to obtain relief
directed at securing her entitlement to the allowance in respect of her
grandchildren. She succeeded before Webster J and the Minister of Public
Service and Administration (the Minister) appeals with his leave. Ms
Ngwenya has, however, decided not to participate in this appeal.

[3] When members of the public service are posted to South Africa’s
foreign missions abroad they are entitled to receive certain allowances
designed to ensure that they are able to perform a service and maintain a
standard of living commensurate with the image which the government
wishes to project abroad. The nature and extent of these allowances is
negotiated in the Public Service Co-ordinating Bargaining Council and
embodied in resolutions that are collective agreements in terms of s 214
of the Labour Relations Act 66 of 1995. The resolutions are then
incorporated in determinations issued by the Minister in terms of
s 3(4)(b) of the Public Service Act, 1994.1 In the present case the relevant
resolution is resolution 8 of 2003, as amended by resolution 1 of 2008.
The original Foreign Service Dispensation Determination was issued with

1 The Public Service Act, 1994 is contained in Proclamation 103 published in Government Gazette
15791 of 3 June 1994.

effect from 1 December 2003 and was amended in accordance with
resolution 1 with effect from 1 April 2010.

[4] Resolution 8 of 2003 provides that foreign service officials posted
abroad are entitled to claim and receive a children’s allowance in respect
of all dependent children. A dependant child is defined as meaning ‘a
biological or adopted child or a stepchild for whose care the employee is
legally
responsible’.
That
definition
was
incorporated
in
the
determination published by the Minister and was unaltered by the
changes brought about by the amendments agreed upon in 2008.

[5] Ms Ngwenya recognised that her situation in relation to her
grandchildren did not fall within this definition. She accordingly asked
the high court for an order amending the definition in both the resolution
and the ministerial determination by including, after the reference to a
stepchild:
‘a child whereof the parental responsibilities and rights agreement has been registered
with the Family Advocate or has been made an order of the High Court in terms of
Section 22 of the Children’s Act 38 of 2005.’
The high court granted that order, subject to a condition that its order
would remain in force until such time as the Public Service Co-ordinating
Bargaining Council had re-negotiated the definition. The judgment is
silent on what was to happen if it had been re-negotiated on the same
terms or at least on terms that did not cater for persons situated such as
Ms Ngwenya.

[6] Ms Ngwenya did not ask the high court to construe the resolution
and ministerial determination in a way that would include her situation.
She simply asked the court to amend them. Her basis for doing so was to

say that the Department of Public Service and Administration adopted an
incorrect approach and ‘shows very little appreciation for the predicament
that my grandchildren and I find ourselves in and can never be in the best
interests of my grandchildren’. Although she made some reference in her
affidavit to both the Children’s Act and the constitutional rights of
children, she failed to point to any provision of the former that entitled
her to the relief she sought and mounted no constitutional challenge to
either the resolution or the determination. In the circumstances her case
lacked any discernible legal foundation.

[7] It is unnecessary to cite authority for the proposition that courts do
not have the power to amend contracts or collective agreements or to
direct ministers of state to amend the proclamations they issue in the
absence of some statutory or constitutional ground for doing so. A
reading of the judgment suggests that the judge was moved to grant the
order that he did by a sense that Ms Ngwenya’s situation was anomalous
in the light of the fact that an adopted child fell within the definition and
he regarded the arrangements she had made as analogous to adoption.
That is not a legal basis for the grant of the relief that she was seeking. It
may provide a reason for the parties to the collective agreement to
negotiate an amendment of the definition but that is for them, not the
courts, to determine.

[8] The appeal must accordingly be upheld and the order of the court
below replaced by one dismissing the application. Those orders carry
with them orders for costs but I see no reason why those costs should
include the costs of two counsel. The case is not of such complexity as to
warrant the Minister taking that precaution. Accordingly the appeal is

upheld with costs and the order of the court below is altered to one
dismissing the application with costs.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
B R Tokota SC (with him M Gwala)
Instructed by:
State Attorney, Pretoria and Bloemfontein

For respondent:

None