Minister of Public Service and Administration v Ngwenya

Ms Ngwenya was employed by the Department of International Co-operation and International Relations. In 2011, she was posted to South Africa's diplomatic mission in Norway for four years. As the only employed family member, she had been responsible for the maintenance and upbringing of her two grandchildren. She entered into parental rights and responsibilities agreements with her daughters under section 22 of the Children's Act 38 of 2005, permitting her to take the children to Norway and arrange for their education and upbringing. She claimed entitlement to receive the children's allowance afforded to foreign service officials for each grandchild. The Department of Public Service and Administration rejected her request because the relevant collective agreement (Resolution 8 of 2003 as amended by Resolution 1 of 2008) and ministerial determination only permitted the allowance for a biological or adopted child or stepchild for whose care the employee is legally responsible. This definition did not cover grandchildren under parental rights agreements.

• Whether the high court had jurisdiction to amend a collective bargaining agreement
• Whether the high court had the power to order amendment of a ministerial determination
• Whether the definition of 'dependent child' in Resolution 8 of 2003 and the Foreign Service Dispensation Determination could be amended by the court to include grandchildren under parental rights and responsibilities agreements
• Whether courts can amend contracts or collective agreements in the absence of statutory or constitutional grounds

The appeal was upheld with costs. The order of the court below was altered to one dismissing the application with costs. The costs were limited to those of one counsel, not two, as the case was not of sufficient complexity to warrant two counsel.

Courts do not have the power to amend contracts, collective agreements, or ministerial determinations in the absence of statutory or constitutional grounds for doing so. The fact that a situation may appear anomalous or that the court regards an arrangement as analogous to a situation covered by the agreement does not provide a legal basis for judicial amendment. Amendment of collective agreements negotiated in bargaining councils is a matter for the parties to those agreements to determine through negotiation, not for courts to impose.

Wallis JA noted that while the respondent's situation might provide a reason for the parties to the collective agreement to negotiate an amendment to the definition of dependent child, this was a matter for them to determine, not the courts. The judgment also observed that the high court judge appeared to have been moved by sympathy for Ms Ngwenya's situation and regarded her parental rights arrangements as analogous to adoption, given that adopted children fell within the definition. However, the Court made it clear that sympathy and perceived analogies do not constitute legal grounds for granting relief. The Court also commented on costs, noting that there was no reason for costs to include two counsel as the case was not of such complexity to warrant that precaution.

This case establishes important principles regarding the limits of judicial power in relation to collective bargaining agreements and ministerial determinations. It affirms the separation of powers between the judiciary and other branches of government, and between courts and parties to collective agreements. The judgment reinforces that courts cannot unilaterally amend employment conditions that have been negotiated through collective bargaining and formalized in ministerial determinations, even when moved by sympathy for an individual's circumstances. Such amendments must be negotiated by the parties themselves. The case also highlights the importance of properly founding legal challenges on specific statutory or constitutional provisions rather than relying on general equity considerations or perceived anomalies.