Ratified treaties¹

Constitutionality of national provisions prohibiting freedom of association to the members of the armed forces/ Interpretation of the national Constitution in the light of ILO Conventions/ Use of international law as a guide for interpreting domestic law

The South Africa Constitutional Court had to determine whether the provisions prohibiting members of the armed forces from participating in public protest action and from joining trade unions were restraining constitutional rights. If it did, the Court would have to determine whether that restriction was justified.

Article 23(2) of the National Constitution states:

“Every worker has the right: 1) to form and join a trade union 2) to participate in the activities and programs of a trade union 3) to strike.”

In order to decide if the law was restricting rights protected by the Constitution, the Court had to determine whether it could be said that members of the armed forces were “workers” as contemplated by section 23(2) of the Constitution. To interpret Article 23 of Constitution, the Court relied on ILO Conventions and Recommendations:

“Section 39 of the Constitution provides that when a court is interpreting chapter 2 of the Constitution, it must consider international law. In my view, the conventions and recommendations of the International Labour Organization (the ILO), one of the oldest existing international organizations, are important resources for considering the meaning and scope of “worker” as used in section 23 of our Constitution.”

The Court referred to Articles 2² and 9(1)³ of ILO Convention No. 87 and concluded that:

“It is clear from these provisions, therefore, that the Convention does include “armed forces and the police” within its scope, but that the extent to which the provisions of the Convention shall be held to apply to such services is a matter for national law and is not governed directly by the Convention.”

Noting that ILO Convention No. 98 adopted the same approach, the Constitutional Court concluded the following:

“The ILO therefore considers members of the armed forces and the police to be workers for the purposes of these Conventions, but considers that their position is special, to the extent that it leaves it open to member states to determine the extent to which the provisions of the Conventions should apply to members of the armed forces and the police.”

Adopting the same approach as of ILO Conventions Nos. 87 and 98, the Court considered that the word “worker” of Article 23(2) of the Constitution should be interpreted to include members of armed forces. However, their constitutional rights protected by this Article could be limited by national legislations, as long as that limitation was reasonable and justifiable in an open and democratic society as provided in section 36 of the Constitution.

The Constitutional Court of South Africa concluded that the total ban on trade unions in the armed forces was clearly going beyond what is reasonable and justifiable to achieve the legitimate State objective of a disciplined military force. Therefore, the Court declared that the national provision was unconstitutional. On the other hand, the Court decided that the prohibition of the right to strike to the armed forces did not violate the Constitution.