Minister of Public Service and Administration v Ngwenya

The respondent, Ms Mirriam Jabulile Ngwenya, was a public servant employed by the Department of International Co-operation and International Relations and was posted to the South African diplomatic mission in Norway for four years. She wished to take her two grandchildren with her, as she had been responsible for their maintenance and upbringing. To facilitate this, she concluded parental responsibilities and rights agreements with her daughters in terms of s 22 of the Children’s Act 38 of 2005. She then claimed children’s allowances for her grandchildren under the Foreign Service Dispensation. The Department of Public Service and Administration rejected her claim because the applicable collective agreement and ministerial determination limited the allowance to biological, adopted, or stepchildren. Ms Ngwenya approached the Gauteng North High Court, which ordered an amendment to the collective agreement and determination to include children covered by s 22 agreements. The Minister appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the Gauteng North High Court was set aside and replaced with an order dismissing the application with costs.

The case affirms the limits of judicial power in relation to collective bargaining agreements and ministerial determinations in the public service. It underscores the separation between judicial functions and collective bargaining processes, and confirms that courts cannot amend collective agreements or administrative instruments on equitable grounds alone.