our-illumination.com · Web viewThe vision of society proclaimed by the Constitution of the Republic of South Africa, 1996 (Constitution) is an open democracy. There are a number

LAWDEMOCRACY & DEVELOPMENT

VOLUME 22 (2018)DOI:1 ISSN:2077-4907

My Vote Counts and the Transparency of Political Party Funding in South AfricaJONATHAN KLAAREN

Professor, University of the Witwatersrand

1 INTRODUCTION

The vision of society proclaimed by the Constitution of the Republic of South Africa, 1996 (Constitution) is an open democracy. There are a number of aspects – angles – to that openness. Paradoxically, one of them is secrecy. In the context of representative and participatory democracy, the debate over and consideration of the Protection of State Information Bill (often termed the “Secrecy” Bill or Act) up to its passage as an Act provided a true test for the post-apartheid South African democracy.1 It is

1 Klaaren J, "The South African ‘Secrecy Act’: democracy put to the test" (2015) 48 Verfass Recht Übersee VRÜ 284–303. I argued that the South African parliamentary oversight was not as well implemented as the German oversight and that there were as yet clumsy modes of incorporating elements of the national debate from the provincial and local levels into the National Council of Provinces (the second legislative chamber of Parliament). I also argued that terming South Africa a dominant democracy framework (a mode of analysis in comparative constitutional law akin to the category of one- party States) was inferior to an analysis attending to the symbolic politics of transparency between the intelligence services and the media.

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important to move beyond the balancing metaphor and to recognize that transparency and secrecy are not two concepts separate from each other. The insight that transparency and opacity are mutually implicated allows us to understand better how both are supported and nurtured within a constitutional democracy.

The Constitutional Court in the My Vote Counts case was faced with a question of what an open society might entail in practice – specifically, whether or not private funding to political parties ought to be disclosed publicly as part of implementing the right of access to information. This article thus explores one particular angle of openness -- the meaning of constitutional authority to enforce the right of access to information.

There are, of course, other angles of openness. One is the social character of openness. This quality is embodied in the concept of the open society2 as well as in the concept of an open university, a concept with a tradition in South Africa stemming from an important 1957 statement.3 As any contemporary observer of South African politics would be aware, this angle of openness clearly draws on the recent South African experience of the #FeesMustFall student movement. In the last three months of 2015, this student movement succeeded in obtaining a zero per cent fee increase for higher education for the following year. The movement is arguably a significant political development that will have consequences both in the higher education sector and in broader national politics. Moving beyond the open university tradition, further issues have arisen. University administrations have engaged robust private security protection in ostensibly private spaces, albeit ones which function publicly. They have also obtained interdicts that bear comparison with the negative features of SLAPP (strategic litigation against public participation) suits.4 Another is a debate kicking off over the suitability of university governance and the value of academic autonomy in the context of political responsibility for transformation in the sector.5 There are both risks and opportunities in the current moment. Perhaps balancing the risk that securitization may become the norm on campuses, there is an opportunity to put into place university protest policies that are both rights regarding and democracy furthering.

Another angle of openness is its character as an end, a political ideal.6 This differs from an open society and presumes, at a minimum, a condition of no political capture as a precondition for democracy. This topic has become the subject of a

2 Popper K The Open Society and Its Enemies (London and New York: Routledge 2012); Soros G Open Society Reforming Global Capitalism Reconsidered (New York: PublicAffairs 2000); Constitution s 36(1). 3 University of Cape Town Academic Freedom Committee & University of the Witwatersrand AcademicFreedom Committee The Open Universities and Academic Freedom, 1957-1974: A Review (Cape Town:Juta 1974).4 Murombo T “SLAPP suits: an emerging obstacle to public interest environmental litigation in South Africa” (2011), available at http://papers.ssrn.com/abstract=1858642 (accessed 30 June 2016).5 “Council on Higher Education contradicts UCT, SAPTU on amendment bill", available at POLITY.ORG.ZA, http://www.polity.org.za/article/council-on-higher-education-contradicts-uct-saptu-on-amendment-bill- 2016-02-16 (last accessed 17 February 2016).6 Constitution 1.

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growing literature, with works by Anthony Butler7 and Pierre de Vos8, discussing the relationship between funding and the operation of political parties in a democracy. In general, this literature upholds the value of institutional independence, in particular that of the Constitutional Court, without partaking of theories viewing South Africa as a democracy dominated by a single party. This angle of openness is situated on the democratic side within the tradition of liberal-democratic constitutionalist concern about South African democracy. In a recent example, Theunis Roux offers a functionalist analysis of the consolidation role played by the Constitutional Court in the last 20 years in South Africa.9 Contrasting his view with that of those pushing the Court to do more, Roux reads some significant Court decisions as safeguarding the Court’s own institutional role and thereby safeguarding constitutional democracy in the long term.10

The social character of openness may be integrated with the call to arms of openness as an ideal against political capture -- in other words how these two angles of openness could be aligned. Heinz Klug has reviewed three monographs each advancing distinct fundamental theories of constitutional democracy.11 The third of the three scholars he reviews is Gary Jacobsohn, whose work focusses on the question of constitutional identity.12 It is intriguing that Jacobsohn’s theory may allow constitutional scholarship to bring into view the identity seeking character of the 2015 South African student movements, both #FeesMustFall and #RhodesMustFall.13 In this theory, it is the identity formation over the long haul of a constitution that is key. Within such an identity may also lie the quality that is fundamental to the call for avoiding political capture, thus aligning these angles of openness. On this note, I turn now to examine the Constitutional Court’s decision in the My Vote Counts case (“MVC case”).14

2 ANGLING FOR OPENNESS: MVC case

The MVC case concerned the implementation of the constitutional right of access to information in South Africa’s democracy. In my view, the majority judgment in the MVC

7 Butler A Paying for politics: party funding and political change in South Africa and the global South Jacana Media (2010).8 De Vos P "It’s my party (and I’ll do what I want to?): internal party democracy and section 19 of the South African Constitution" (2015) 31 SAJHR 30–55.9 Roux T "Constitutional courts as democratic consolidators: insights from South Africa after 20 years", (2016) 42 J South Afr Stud 5–18.10 Roux T “The South African Constitutional Court’s democratic rights jurisprudence: a response to Samuel Issacharoff” (2013), available at http://papers.ssrn.com/abstract=2497777 (last accessed 13 October 2014).11 Klug H “Constitutionalism, democracy and denial in post-apartheid South Africa (2012), available at http://papers.ssrn.com/abstract=2141310 (last accessed 13 January 2016).12 Jacobsohn G Constitutional identity (Cambridge: Harvard University Press 2010).13 Mbembe A "Decolonizing the university" Africa is a country, available at

http://africasacountry.com/2015/06/decolonizing-the-university/ (last accessed 14 January 2016). 14 My Vote Counts NPC v Speaker of the National Assembly and Others (CCT121/14) [2015] ZACC 31 (30September 2015).


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case represents a lost opportunity to begin a respectful dialogue between the judiciary and the legislature about the shape and content of information security and disclosure laws. A majority of justices rejected the claim of the applicant that Parliament had failed to fulfil a duty in terms of section 167(4)(e) to enact legislation giving effect to the right of access to information in relation to information held by political parties regarding their receipt of funding from private sources.15 The applicant’s claim depended on a reading of section 32 (the right of access to information) together with a reading of section 19 (the right to vote). The majority judgment did not reach the issue of whether section 19 properly interpreted and read together with section 32(2) provide a right to information about private funding of political parties. As the majority stated: “Our approach makes it unnecessary for us to pronounce on whether information on the private funding of political parties is required for the exercise of the right to vote.”16

The majority rested its rejection of the applicant’s claim on two points: first, that to decide in favour of the applicant and to find such an obligation in section 167(4)(e) would violate the doctrine of the separation of powers; and secondly, in a more technical vein, that “the validity of PAIA is challenged and PAIA is the legislation envisaged in section 32(2), [so] the principle of subsidiarity applies … [and] the applicant ought to have challenged the constitutional validity of PAIA frontally in terms of section 172 of the Constitution in the High Court”.17 This article concentrates on the majority’s second point – the proper reasoning regarding the relationship of the validity of the Promotion of Access to Information Act 2 of 2000 (PAIA) and the interpretation of section 32(2) – and largely leaves aside general considerations of the doctrine of the separation of powers and their implications for the proper interpretation of section 167. It does so assuming that, on the first issue, a dialogic view of the doctrine of separation of powers is appropriate for the interpretation of section 32.18

In an apparently still relevant article published 20 years ago, I offered an interpretation of section 32(2) and the associated duty to pass legislation found in item 23 of the transitional Schedule to the 1996 Constitution. I argued that for

“a decisive break from the constitutional culture of the past, it is necessary to take into account the institutional and structural relations between the various organs of state in order to provide a workable and democratic model of constitutional law. The ‘give effect to’ clauses in the administrative justice and access to information rights are two good places to employ an institutional analysis and to allow both Parliament and the judiciary to play a role in constitutional interpretation”.19

Under this kind of structural interpretive analysis, the MVC case is revealed as a democratic opportunity missed and the reasoning of the majority as flawed due to an incorrect implicit interpretation of the relationship of the validity of PAIA and the interpretation of section 32(2).

15 At 121–195.16 At 124.17 At 122.18 Klaaren J Keynote address. Colloquium of the Constitutional Justice Project (2015) (on file with author). 19 Klaaren J "Constitutional authority to enforce the rights of administrative justice and access to information" (1997) 13 SAJHR 549 564.

TRANSPARENCY OF POLITICAL PARTY FUNDING IN SOUTH AFRICA

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For this argument, two key texts from two decades back are important starting points: the still current text of the right of access to information in the 1996 Constitution and the transitional schedule that governed the transition to this right. The text of section 32 provides as follows:

“(1) Everyone has the right of access to-(a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights. (2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.”

The transitional provision to be read with section 32 was in a Schedule at the back of the Constitution. In Schedule 6 to the 1996 Constitution20, Item 23 Bill of Rights provides:

“(1) National legislation envisaged in sections 9(4), 32(2) and 33(3) of the new Constitution must be enacted within three years of the date on which the new Constitution took effect. …(3) Sections 32(2) and 33 (3) of the new Constitution lapse if the legislation envisaged in those sections, respectively, is not enacted within three years of the date the new Constitution took effect.”

In relation to the validity of PAIA, the MVC case majority assumes an interpretation of section 32(2) as a clause requiring Parliament to cover the field of access to information with legislation giving effect to the right. In other words, the implicit interpretation of section 32(2) is that the content of the right (indeed, the full content of that right) must have been enacted into one comprehensive piece of legislation as part of the original function of section 32(2). The PAIA is sufficient and comprehensive. Challenges to PAIA as being under-inclusive may well be brought on the basis of section 32, but such challenges should be understood as challenges to the substantive validity of PAIA.

This assumed interpretation of the majority is not the best fit with the drafting history of the Constitution, as well as with the character and structure of South Africa’s constitutional democracy. I have offered a different interpretation. One should best read section 32(2) in its original context read with Item 23 of Schedule 6 to provide for a once-off duty to pass information disclosure legislation of some type, and thereafter (once Item 23 has essentially fallen away) to continuously signal the degree of deference due to Parliament by the judiciary in reviewing Parliament’s legislative choices in enforcing the right of access to information. In this view, with regard to the right of access to information and the right to just administrative action, the judiciary owes Parliament a degree of deference with regard to its legislative choices especially on the matter of appropriate institutional design (the enforcement mechanism) to give effect to the rights.21

For the sake of argument, let us assume that the right to vote in section 19 read with section 32 does require that voters have access to information about private funding of political parties. It may even be the case that section 32 on its own should be so interpreted. It does not necessarily follow that section 32(2) read with Item 23

20 See also Item 21 which provides: “Where the new Constitution requires the enactment of national or provincial legislation, that legislation must be enacted by the relevant authority within a reasonable period of the date the new Constitution took effect.”21 Klaaren (1997).


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required that Parliament enact PAIA in order to give effect to the full extent of the content of the right through a single piece of legislation comprehensively covering the content of the right, nor does it follow that section 32(2) read with section 167(4)(e) now require that PAIA be amended. Instead of imposing such a rigid obligation to legislate and cover the field of access to information, section 32(2)’s give effect to clause should be read rather to grant power to and provide for a leading institutional design role for Parliament.22 As I will explore more fully below, a more flexible enforcement regime providing some place for common law doctrine and its development as well as provincial legislation and other elements is within the competence and discretion of Parliament in choosing how to implement the constitutional right of access to information.

The problems of the majority may have started with the applicant. In highlighting its understanding of the applicant’s case, the majority emphasizes that the applicant distinguishes between an access to information regime of proactive disclosure of party funding and a regime of once-off disclosure upon request.23 In the majority’s view, PAIA does the latter and the applicant has asked for the former – a statute providing for general and continuous disclosure of private funding sources by political parties as part of a comprehensive regulatory regime. The applicant’s submission cited by the majority24 put its argument in the following terms:

“The applicant's founding affidavit sets out the source and substance of the constitutional obligation to enact the lacking legislation. In short, the right of access to information held by political parties, which is required for the effective exercise of the right to vote, cannot be given effect to without the enactment of the lacking legislation. Section 32(2) of the Constitution thus imposes an obligation to enact such legislation.”25

This was an overstatement and appears to have started the majority down the wrong track.

The majority opinion in the MVC case does not fully explore or identify the source of the duty to enact PAIA in the first three years of the final Constitution. A thought experiment was needed as to how the constitutional validity of PAIA might have been challenged on the basis of Item 23 of Schedule 6. Such an exploration can lead to three important doctrinal conclusions regarding the source of the duty to enact legislation to enforce the right of access to information, the character of the legislative scheme enforcing the right as partial or comprehensive, and the proper format and forum to challenge the existing legislative scheme. The remainder of this section discusses these three points.

22 The rigidity of the assumed interpretation may underlie an apparent degree of ambiguity regarding the exclusive jurisdiction of the Court. In para 121, the majority opinion states that it agrees that the Constitutional Court has exclusive jurisdiction over the applicant’s claim (but cf para 190). This fuzziness over exclusive jurisdiction is one doctrinal location of dispute between the minority and the majority.23 MVC case 126 & 128.24 MVC case 190.25 Applicant’s written argument: My Vote Counts NPC v Speaker, National Assembly 9 (2014) available at http://www.constitutionalcourt.org.za/Archimages/22429.PDF (last accessed 17 February 2016).


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2.1 The Source of the Duty to Enact Legislation Enforcing the Right

At the time of PAIA’s passage, the source of the duty for its passage was Item 23(1) of Schedule 6 read with section 32. The source was not section 32(2) on its own. Read with Parliament’s obligation to comply with constitutional duties placed on it, this indeed was a duty on Parliament. Parliament satisfied that duty two decades ago by passing PAIA within Item 23’s required timeline -- albeit just in time. A procedural test was appropriate for judging compliance with this duty and Parliament’s action in enacting PAIA passes that test. The PAIA is the legislation envisaged in Item 23(1) of Schedule 6 read with section 32.26 The majority rightly contends that it is incorrect – in its terms “ludicrous” -- to contend that PAIA is not the legislation envisioned in section 32(2) and enacted within three years of the passage of the 1996 Constitution.

2.2 The character of the legislative scheme enforcing the right as partial or comprehensive

However, in the majority’s implicit interpretation of section 32(2) read with the principle of subsidiarity, there is only one relevant piece of legislation, PAIA, for enforcement of the right of access to information. This interpretation of section 32(2) as requiring comprehensive legislation is incorrect. The PAIA is national legislation envisaged in section 32(2). However, it is not the only legislation envisaged in section 32(2). On a proper interpretation, PAIA is one of what one can regard as a number of openness-enforcing statutes. As PAIA itself recognizes, statutes other than PAIA give effect to and may be measured against the content of the section 32 right of access to information.

A substantial part of the MVC case majority’s reasoning that PAIA is comprehensive legislation giving effect to section 32 is by analogy with the Promotion of Administrative Justice Act 3 of 2000 (PAJA).27 There is however a much stronger argument for the exclusivity and comprehensiveness of PAJA than there is for PAIA. Both PAJA and PAIA are statutes that provide enforcement mechanisms for a constitutional right. Still, neither the enforcement mechanisms chosen by Parliament nor the constitutional structures within which those enforcement mechanisms operate are the same.

The PAJA provides – in section 6 of that Act -- for judicial review as its central enforcement mechanism. The PAJA also lays down some other rules of procedural fairness addressed, it would seem, to a bureaucratic and executive audience as well as to the public at large. The PAIA provides for its central enforcement mechanisms in the shape of a request for records made to an organ of state in most cases. The PAIA also lays down some other rules of disclosure/non-disclosure such as, proactive publication requirements and an interim duty of confidentiality pending the enactment of privacy legislation. The similarity between PAJA and PAIA is in their character as rights enforcing statutes and in the Parliamentary provision of a specific central remedial

26 Klaaren (1997).27 MVC case 136–149.


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mechanism to each of those pieces of legislation -- judicial review in PAJA and a regime of disclosure upon request in PAIA. Yet these enforcement mechanisms are clearly different. Judicial review depends upon an existing institution – the courts – and lends itself more towards an interpretation as comprehensive and covering its field than does the enforcement mechanism of a request between parties for access to information.

Beyond the difference in central enforcement mechanisms, there is a further significant difference between PAJA and PAIA -- the constitutional structure alongside which these enforcement mechanisms operate. While PAJA has an associated constitutional structure, PAIA does not. The constitutional mandate that there be one system of law and courts for judicial review28 arguably leads directly to the jurisprudence requiring PAJA to be used in priority over the principle of legality. 29 By contrast, the Constitution prescribes no integrated institutional system for enforcement of the right of access to information.30

2.3 What are the proper format and forum for a challenge to existing legislation enforcing the right?

Since the Court is clear and correct in noting that the procedural step of timely enactment of legislation enforcing the right of access to information was validly taken two decades ago, it is apparently a substantive test of validity that the majority is imagining will take place in the High Court in terms of the case that it says the applicant should have brought. As the majority puts it in its conclusion:

“Although the application falls under this Court’s exclusive jurisdiction, PAIA is the legislation envisaged in section 32(2) of the Constitution. The applicant has not challenged it frontally for being constitutionally invalid. In accordance with the principle of subsidiarity, it ought to have done so as that principle is applicable to this application. The application must fail.”31

The majority thus appears to be looking towards a constitutional challenge to PAIA for unduly restricting the exercise of the right in that PAIA has enacted a request mechanism. If so, that is a challenge to the constitutional validity of PAIA that encompasses an interpretation of section 32(2). There are a number of avenues such a challenge could take – the variety and assessment of which lie beyond the scope of this article. For instance, is the request limitation constitutional or not?32

28 Pharmaceutical Manufacturers Association of South Africa and another: In re Ex parte President of the Republic of South Africa and others (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25February 2000).29 State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd (641/2015) [2016] ZASCA 143; [2016] 4 All SA 842 (SCA) (30 September 2016).30 Klaaren J "Structures of government in the 1996 South African Constitution: putting democracy back into human rights" (1997) 13 SAJHR 3–27.31 MVC case 193.32 Currie I & Klaaren J The Promotion of Access to Information Act Commentary (Cape Town: SiberInk 2002). Such a challenge to the enforcement mechanism chosen by Parliament in PAIA is quite different to a challenge that says the enforcement mechanism chosen should be extended to a category of information held by particular legal persons. This scope challenge falls somewhat in-between the clear realms of a enforcement mechanism and the content of the right. While opinions might differ on this point, Currie and I have termed such a challenge effectively a challenge to the content of the right. Thus, Parliament would receive no special deference in such a case.


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The majority’s requirement for the applicants to go to court and start in the High Court and its interpretation of the give effect to clause in section 32 both do little to promote institutional dialogue nor to invite Parliament into a discussion with the judiciary over the policy area of information disclosure. The development of South Africa’s regime regarding political party funding would not be well served by an approach to the High Court with some sort of mini-certification claim against the substantive validity of PAIA as suggested by the majority. More helpful would be reasoning regarding section 19 read with section 32. With the content of the right outlined and with the understanding of PAIA as the central but non-exclusive legislation in the legislative scheme giving effect to the right of access to information, Parliament and other institutions of South Africa’s constitutional democracy could work on further giving effect to that right. Indeed, during the writing and publishing of this article, Parliament has begun consideration of legislation reforming party funding.

3 THE (OPEN AND DEMOCRATIC) WAY FORWARD

In the Part above, I have claimed that the MVC case majority was incorrect in too quickly adopting an interpretation of section 32(2) as mandating the passage and maintenance of a field-covering and exclusive piece of national legislation in order to give effect to the right. In this, the majority possibly understandably reasoned from PAJA jurisprudence. While such a choice may be appropriate with respect to the mandated exclusive judicial review mechanism of PAJA in part for reasons of constitutional structure, such a choice would not be appropriate in the field of access to information where Parliament has made a different choice. It does not make good institutional and pragmatic sense that disclosure of information occurs only through a request for information made in terms of PAIA; and the Constitution mandates no structure – such as the courts – to underpin such a rule.

The constitutional regime around enforcing the right of access to information is actually more nuanced and flexible than the majority gives it credit in this case. Given its importance as a precondition for democracy, it is worth elaborating these flexibilities, which this Part attempts to do. The same is true for the principle of subsidiarity, although even an outline of its nuances and flexibilities must wait for a revision and may be beyond the scope of this article, which focusses on the political context for giving effect to the right to information as a precondition for democracy.33

There are at least two other avenues that could satisfy section 32(2) without placing the contended for duty on Parliament, even assuming that the right to vote does require that voters have access to information about private funding of political parties. One avenue is that of horizontal application. The other avenue is that of enforcement of the right through provincial legislation.

33 Klare K "Legal subsidiarity and constitutional rights: a reply to AJ van der Walt" 1 Cons. Court Rev 129– 154 (2008); Michelman F "Expropriation, eviction, and the dignity of the common law" (2012), available at http://papers.ssrn.com/abstract=2116643 (last accessed 17 February 2016); Van der Walt, AJ "Normative pluralism and anarchy: reflections on the 2007 Term" 1 Const Court Rev 77–128 (2008).


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Let us explore the first avenue of horizontal application. To do so takes us back to the days of certification when it was a commonplace to note that section 32 was a chief textual location confirming the horizontal application of rights in the Bill of Rights. To do so also conforms with a sense of the moral force of the argument in favour of disclosure – in order to make a political choice some information about one legal person– a political party -- needs to be disclosed to another legal person -- an individual voter. Understanding the obligation as horizontal might allow for development of some legal doctrines facilitating disclosure of sources of political party funding. For instance, assume that a political party voluntarily discloses its sources of funding, even where such funding has been made the subject of a confidentiality agreement. The horizontal obligation in terms of section 32 (2) might be raised as a defence against a contractual or delictual action for breach of confidence.

Of course, this horizontal application avenue could also lead by a direct route to a scenario quite close to that envisioned by the majority as the next step. A PAIA application to a political party refused by that political party on the grounds that there was no right to be exercised between the applicant and that political party (a provision of PAIA distinct from the substantive grounds for refusals, such as privacy, commercial confidentiality, etc.) can be taken on review to the High Court on the grounds that section 19 read with section 32 properly interpreted does contain such a right. This scenario would present a frontal challenge not to PAIA but to the category of denials made by political parties to PAIA requests and thus to the parties’ interpretation of PAIA. One can imagine how this might even be the subject of a class action.

Let us next explore a second avenue of enforcement of a constitutional obligation to disclose private funding of political parties: enforcement through provincial legislation. South Africa already has legislation in various provinces that comes very close to, if not falling squarely within, this avenue. As of 2014, it appeared that six provinces had followed the lead of the Gauteng Provincial Legislature, which first passed legislation authorizing allocation of provincial funds to political parties in its Gauteng Political Party Fund Act 3 of 2007.34 The Western Cape has not passed such legislation while the Eastern Cape did so but has since repealed its law. These seven provincial laws currently funnel some R250m to political parties, about twice as much as is allocated under the national legislation. Doubts have been voiced regarding the constitutionality of these laws, but none has yet been challenged in court. So why not condition the provincial funding of political parties on the disclosure of private sources of party funding? There would seem to be no constitutional impediment to a provincial legislature requiring such disclosure. Indeed, should such a condition be constitutionally challenged as beyond its competence, section 32(2) would provide a substantive defence. In a constitutional democracy, a provincial legislature can and should pass legislation to facilitate the enforcement of constitutional rights and section

34 Solik G "Resources: State and Private -- Use or Abuse? Unregulated Private Funding of Political Parties: Linking Money, Power, and Corruption, Electoral Institute for Sustainable Democracy in Africa: South African Election Updates: Issue Five" (2014), available at https://www.eisa.org.za/eu/2014eu5editorial.htm (last accessed 22 February 2016).


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32(2) is an explicit invitation to do so, while leaving a variety of institutional choices to that legislature.

4 CONCLUSION

In a well-written and perceptive article that came to light after this article was accepted for publication, Raisa Cachalia has argued that the MVC case was an instance where the Constitutional Court as her title argues, “botched procedure and avoided substance”. In her view, the Court should have reached the question of whether the Constitution gives South African citizens a right to know who funds our political parties.35 She persuasively argues that properly interpreted the subsidiarity principle did not apply to this case and that the Court should have reached the substantive issues. Her article further addresses specifically the issue of section 167 and the separation of powers, which this article has largely left aside.

The MVC case may be counted as a democratic opportunity missed. The majority was incorrect to reason as it did with respect to the validity of PAIA and its relationship to section 32(2). What is required are more creative arguments and thinking about how we deepen the character of the political conversation in our constitutional democracy, paying attention to institutional as well as adjudicative aspects. We should retrieve the opportunity for a more limited but nonetheless significant dialogue involving the judiciary and legislature about the place of political parties in the South African democracy.

35 Cachalia R, "Botching procedure, avoiding substance: a critique of the majority judgment in My Vote Counts" (2017) 33(1) SAJHR 138-153.



VOLUME 22 (2018)DOI:2 ISSN:2077-4907

The (Mis)application of the Limitation Analysis in Maseko and others v Prime Minister of Swaziland and othersANGELO DUBE

Associate Professor (International Law), Department of Public, Constitutional and International Law, University of South Africa

SIBUSISO NHLABATSI

Legal Clinic Principal, University of Swaziland

1 INTRODUCTION

On 16 September 2016, the High Court of Swaziland delivered judgment in a case involving the interpretation of the limitation clause in the Swaziland Constitution. This was in the case of Maseko and others v Prime Minister of Swaziland and others (Maseko),1 in which certain sections of the Sedition and Subversive Activities Act 46 of 1938 (Sedition Act) as well as the Suppression of Terrorism Act 3 of 2008 (STA) were declared unconstitutional. It should be noted that there is a general reluctance within the judiciary to enquire into or rule upon the constitutionality of

1 [2016] SZHC 180.

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impugned legislation, and quite often constitutional challenges fail at the preliminary stage of determining locus standi. The Court’s response to the legal challenge in Maseko is thus very pertinent to constitutional development in that this was one of the very few instances in which a Swaziland court applied the limitation analysis to declare legislation unconstitutional, and did not shelter behind a common law inspired conceptualisation of standing. The only other time this was done was to declare the common law marital power of the husband invalid on account of its clash with the equality clause in the Constitution in the case of Sihlongonyane v Sihlongonyane (Sihlongonyane).2 However, even in Sihlongonyane, a proper limitation analysis could not be undertaken since the Swaziland Constitution does not have a general limitation clause. The Court was merely guided by the equality clause in sections 20 and 28 which regulate the rights and freedoms of women. It is worth noting that in the Swaziland Bill of Rights litigation context, there is a strong inclination to cling to common law principles, even when dealing with constitutional litigation. For instance, standing is still viewed from the angle of the common law when in fact it is now regulated by section 35 of the 2005 Constitution in so far as constitutional litigation goes. To demonstrate this: in Sihlongonyane, there was an unsuccessful attempt to have the case thrown out on the basis that the female applicant did not have standing due to the marital power of the husband. The Court had to first deal with that challenge before determining the constitutionality or otherwise of the common law marital power of the husband.

In Maseko, however, the Court was divided on whether the applicants had standing or not. Whilst the majority judgment accepted that they did have standing, the dissenting judge held otherwise. What makes the majority judgment in Maseko even more interesting is the fact that the impugned pieces of legislation were utilised for political purposes, namely to, suppress dissenting voices. In the light of an established pattern of political clampdown on both dissenting voices and the judiciary, such a bold and progressive move is indeed commendable. The case marked the first time that the Swaziland courts acknowledged that the Constitution is a living document and that as such they had a duty to interpret the Bill of Rights in accordance with international standards, influenced by the universality of fundamental rights.3

2 BACKGROUND TO THE LITIGATION

On 18 June 2009, the applicant, Mr Thulani Maseko (a lawyer and a human rights activist), filed an application in which he sought to have the Court declare the entire Sedition Act null and void for its inconsistency with sections 1, 2 and 24 of the Swaziland Constitution. In the alternative, he sought to impugn specific sections of the Act, namely, sections 3, 4 and 5, in that the said sections are wide, overbroad and contrary to sections 1, 2 and 24 of the Constitution. Section 2 of the Swaziland Constitution asserts the supremacy of the Constitution, while section 1 provides that

2 [2013] SZHC 144.3 At para 41.


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Swaziland is a unitary, sovereign and democratic Kingdom, but does not proffer a definition of the term "democracy". The Head of State has, however, attempted to give guidance on what the particular form of democracy that Swaziland practises entails. Speaking at the UN General Assembly’s 68th Session in 2013, King Mswati III stated that Swaziland operates what he terms a "monarchical democracy". In other words, the monarchy is at the centre of Swaziland’s form of democracy, which is a "marriage between the monarchy and the ballot box". It combines the monarchy and the popular will. The ballot box is regarded as the will of the people, which provides advice and counsel to the King and serves to ensure transparency and accountability.4

Maseko’s application was followed by a series of other similarly worded applications, which the Court directed should be consolidated with the Maseko matter. The other matters sought a similar remedy and attacked both the Sedition Act as well as certain provisions of the STA. The other three applicants were also political activists and, like Maseko, had been in frequent collision with the State for their political opinions and their association with individuals who held similar dissenting political views. These are: Mario Masuku, a member and president of the banned political party, People’s United Democratic Movement (PUDEMO); Maxwell Dlamini, a student activist and member of PUDEMO; and Mlungisi Makhanya, a political activist and Secretary- General of PUDEMO. Over and above the attack on the Sedition Act, Masuku sought to challenge certain provisions of the STA as unconstitutional, whilst Makhanya attacked the STA only. The other basis for the challenge to the Sedition Act was that it violated the applicants’ freedom of association and assembly contained in section 25 of the Constitution.

The respondents in the matter were the Prime Minister of Swaziland in his official capacity as head of the Executive (a delegated function which constitutionally vests in the King),5 the Minister for Justice and Constitutional Affairs, and the Director of Public Prosecutions. The Attorney-General was also sued in his nominal capacity as the legal advisor to all government departments.

The pusillanimous behaviour of the Swazi judiciary in relation to standing and Bill of Rights litigation in general could be explained by the failure to embrace what can be called "transformative constitutionalism", favouring instead liberal or formal constitutionalism. Transformative constitutionalism embraces the idea of the Constitution as a living document, whose interpretation results in an organic reform of society and its institutions, with the people at the centre of that transformative process. There are many reasons why the Swazi judiciary could fail to embrace transformative constitutionalism. It could genuinely be the result of a bench that had no idea of how to proceed with determining the limitation of a right. It could also be the fact that the Swaziland judiciary faced immense pressure from the executive branch over previous years, which in 2002 saw judges of the then Court of Appeal resign en masse following

4 United Nations, ‘Swaziland’, General Assembly of the United Nations 68th Session (25 September 2013) available at https://gadebate.un.org/en/68/swaziland (accessed 14 February 2017).5 The Prime Minister is appointed by the King as provided by s 67(1) of the Constitution of Swaziland.

LIMITATION OF RIGHTS IN SWAZILAND

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the Prime Minister’s interference in their work.6 It could also be a result of interference from within, which characterised the state of the judiciary during the tenure of former Chief Justice Michael Ramodibedi, who controversially referred to himself as "Makulu baas" (an apartheid era term used to refer to an autocratic White male in a position of power). During Ramodibedi’s tenure, judges did not have the independence to carry out their duties, and risked being fired for delivering unfavourable judgments. Instructive in this regard is the case of Justice Thomas Masuku,7 whom Ramodibedi had fired after he wrote metaphorically in his judgment in Aaron Maseko v The Commissioner of Police that it is "incomprehensible that His Majesty could conceivably speak with a forked tongue".8 Ramodibedi hastily convened a tribunal in which he sat as a complainant, a prosecutor, a witness and a judge, and found Masuku guilty. This opened the way for impeachment, and Judge Masuku was later fired.

Ramodibedi went on to issue practice directives to all judges and registrars of courts, not to entertain matters in which the King was cited.9 Given this edict, it is highly probable that judges might have engaged in self-censorship, especially in dealing with constitutional challenges, which are largely viewed as an attack on the King himself. What makes this possibility even more plausible is that with the departure of Ramodibedi after facing corruption charges in 2015, the judiciary seems to have regained boldness to not only admit such matters, but to also strike down offending provisions that have been used to preserve "monarchical democracy". It is notable that the progressive majority judgment in Maseko departs from the position adopted by the Swaziland courts, which not so long ago endorsed the faulty notion that the King can do no wrong.10 This was in the case involving the Law Society of Swaziland in which the exercise of public power by the King to appoint judges was questioned.11 The bench, which consisted of three acting judges, dismissed the matter citing the immunity of the King under both the Constitution and customary law.

Turning to Maseko, it is worth noting that Mamba J, when delivering the majority judgment, was alive to the way in which the judgment would be received by the political authority in Swaziland. Hence the learned judge alluded to the fact that the judgment should not be seen as being contrary to the "Swazi way of life".12 The learned judge

6 Maseko T "The drafting of the Constitution of Swaziland, 2005" (2008) 8(2) African Human Rights Law Journal 312, 328. This happened after the Court of Appeal delivered two judgments, the first of which declared that the King lacked authority to make law by decree; whilst the second one committed the Commissioner of Police for contempt of court. The Swaziland Government acting through the Prime Minister issued a statement that it would not comply with judgments of the Court of Appeal. The resignation en masse of the judges left Swaziland without a Court of Appeal for over two years.7 Dube A & Nhlabatsi S "The King can do no wrong: The impact of The Law Society of Swaziland v Simelane NO and Others on constitutionalism" (2016) 16 African Journal of Human Rights Law 273.8 Aaron Maseko v Commissioner of Police and another [2011] SZHC 66.9 Dube A "Does SADC provide a remedy for environmental rights violations in weak legal regimes? A case study of iron ore mining in Swaziland" (2013) 3 SADC Law Journal 270.10 Dube A & Nhlabatsi S (2016) 278.11 Law Society of Swaziland NO v Simelane and others [2014] SZHC 179.12 Para 41.


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seemed to be aware of certain segments within Swazi society (especially within traditional structures) which regard fundamental rights as "unSwazi" and against customary law. He emphasized that the values and aspirations that informed his reasoning are not foreign but are contained in the very same Constitution. He went on to state that his judgment was an attempt to reaffirm the universality of human rights. Mamba J also invoked section 2(2) of the Constitution, which places a positive duty on everyone to uphold and defend the Constitution. This was a very progressive, if not revolutionary, judgment. The judge invoked his resolute, firm and unshakeable belief in traditional institutions, justice, democracy and human rights.

Some of the values the judge alluded to are contained in the preamble of the Constitution. It is now settled that the preamble is critical in assisting the Court to interpret fundamental rights.13 It is as much an important source of law as are the operative provisions of a constitution, even though it does not contain any positive norms. Preambles often outline a society's fundamental goals.14 These may be universal objectives, such as the advancement of justice, equality, democracy and human rights, as well as economic goals.15 In essence, it contains the supreme goals of any nation.

The preamble to the Constitution stipulates, amongst others: “Whereas it is necessary to blend the good institutions of traditional law and custom with those of an open and democratic society so as to promote transparency and the social, economic and cultural development of our Nation."

The preamble further provides that the Constitution was the culmination of a review of various laws, decrees, customs and practices with a view to promoting good governance, the rule of law, respect for institutions, and the progressive development of Swaziland society. This encapsulates the notion of transformative constitutionalism. It resonates with Karl Klare’s idea of transformative constitutionalism which he dubs "a long term project of constitutional enactment, interpretation, and enforcement committed to … transforming a country’s political and social institutions and power relationship in a democratic, participatory, and egalitarian direction".16

This preambular provision takes into consideration the fact that there are traditional values that pre-dated the Constitution, and that they are very critical to the existence of an open and democratic society. These could include values, such as ubuntu, which can be traced back to the teachings of the African sage, Khem.17 This value is aptly

13 Dube A & Nhlabatsi S "On amorphous terms, terrorism and a feeble judiciary: analysing the dissenting judgment in Maseko v Prime Minister of Swaziland and others" (2017) 12(1) International Journal of African Renaissance Studies – Multi-, Inter- and Transdisciplinary 157, 171 – 172.14 For instance, in S v Makwanyane [1995] ZACC 3 the concept of ubuntu appeared in the postamble of the South African Interim Constitution. In para 237, the Constitutional Court indicated that despite that reality, the concept permeated the entire constitution, and went on to use ubuntu to interpret the rights in the Bill of Rights.15 Orgad L "The preamble in constitutional interpretation" (2010) 8(4) International Journal of Constitution Law 717.16 Klare K "Legal culture and transformative constitutionalism" (1998) South African Journal of Human Rights 146, 157.17 Dube & Nhlabatsi (2016) 275.


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captured in the African idiom umuntu ngumuntu ngabantu (isiZulu, isiNdebele, isiXhosa), motho ke motho ka batho (seSotho and seTswana). This philosophy basically dictates that everyone must be given his due on account of common humanity. This is a horizontal relationship that regulates inter-human relations between individuals.

The notion of ubuntu (or botho in seSotho) also extended to relations between the governor and the governed. In pre-colonial Africa, the government or the State was personified in the king or queen. However, absolutism was frowned upon and regulated by the African philosophy inkosi yinkosi ngabantu (isiZulu, isiNdebele, isiXhosa), inkhosi yinkhosi ngebantfu (siSwati) kgosi ke kgosi ka batho (seTswana), and morena ke morena ka batho (seSotho).18 The legitimacy of a government, and by necessary extension, of the king, flowed from his ability to treat the people under his leadership with ubuntu. This is a vertical relationship which regulates the interactions between the State and the individual. It provides checks and balances for the exercise of public power even in so- called monarchical democracy. In S v Makwanyane (Makwanyane),19 it was said that although the notion of ubuntu appears for the first time in the postamble of the South African Constitution, it permeates the Constitution generally, and more importantly the Bill of Rights. The concept was held by the Court to embody humanness, social justice and fairness. This is because treatment that is cruel, inhumane or degrading is bereft of ubuntu.20 Hence, authoritarianism would go against both the philosophy of ubuntu and inkosi yinkosi ngabantu. In essence, authoritarianism would violate both the horizontal and the vertical relationships.

It is therefore inconceivable that an expression of dissatisfaction with the manner in which the King of Swaziland and his government conduct public affairs would be regarded as treasonous; and that the laws sanctioning the punishment of such conduct could possibly pass constitutional muster.

3 THE ISSUE OF STANDING

Before the Court dealt with the core of the constitutional challenge in Maseko, the litigants first had to satisfy it that they had standing to pursue the matter. As stated above, standing in the Swaziland context has been used by the courts in the past to jettison constitutional matters. This was achieved by narrowly construing what standing entails.21 However, in this particular case, each of the applicants had been charged with the crime of contravening provisions of the two respective Acts. Each

18 Dube & Nhlabatsi (2016) 275.19 [1995] ZACC 3 para 237.20 At para 225.21 Sithole N.O. and others v The Prime Minister of the Kingdom of Swaziland and others [2008] SZSC 22. In casu, the Supreme Court confirmed a decision of the High Court that held that political parties and organised labour organisations had no legal capacity to challenge the constitutional validity of the constitution making process. The Court came to the conclusion that the appellants had no locus standi to challenge the Constitution as at the time of its drafting the 1973 King’s Proclamation was operative as a grundnorm in Swaziland. This is the same Proclamation that introduced a ban on political parties, which ban subsists up to today.


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applicant was therefore challenging the validity of either of the laws in the application before the Court. The Court did not dwell much on this issue since the respondents did not object to the applicants’ claim that they had locus standi to institute the proceedings.22

Although the Court did not elaborate on how it came to its conclusion that the applicants did have standing, such standing flows from section 35 of the Swaziland Constitution. It provides:

"Where a person alleges that any of the foregoing provisions of this Chapter has been, is being, or is likely to be, contravened in relation to that person or a group of which that person is a member (or, in the case of a person who is detained, where any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress."

From the above, it is clear that the following three classes of persons can approach the High Court for redress in the event of a violation of a right in the Bill of Rights:

(i) A person acting in their own interest;(ii) A person acting on behalf of a group of which that person is a member; or(iii) A person acting on behalf of another who is detained.

4 THE MAIN ISSUE BEFORE THE COURT

All the applicants in the case contended that the provisions of the two impugned pieces of legislation violated their respective rights enshrined in sections 24 and 25 of the Constitution.23 This effectively made their application a constitutional matter, falling within the jurisdictional ambit of the High Court. Section 151 of the Constitution clothes the High Court with unlimited original jurisdiction in both criminal and civil matters, as well as jurisdiction to enforce fundamental rights and "to hear and determine any matter of a constitutional nature". The Constitution is silent on what a "constitutional matter" is, and the Court did not elaborate on this point in coming to its conclusion that the applicants’ matter was a constitutional one.24

Constitutional matters are those that involve the interpretation, protection or enforcement of the Constitution. In other words, they have to do with the direct application of the Bill of Rights.25 These are matters that involve a constitutional challenge to law or conduct, based on an unjustified infringement of a fundamental right. The applicants mainly contended that the actions that formed the bedrock of the charges they faced under the two Acts were done in furtherance of their fundamental rights contained in the Bill of Rights. They relied on freedom of expression as well as that of association, or such other related rights, to claim that the infringement of their

22 At para 6.23 At para 8.24 At para 8.25 Du Plessis M, Penfold G, & Brickhill J Constitutional Litigation (Cape Town: Juta 2013) 19.


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rights ran counter to these fundamental entitlements. This was therefore a direct application of the Bill of Rights and as such the matter was a constitutional one.

It should be noted that constitutional matters are not confined to the direct application of the Bill of Rights. There exists another form of constitutional matter, which can be referred to as an indirect application of the Bill of Rights. This may arise by virtue of sections 35(3) and (4) of the Constitution.26 These sections give a discretion to a trial court, acting mero motu during the interpretation of any law, to refer any matter to the High Court for constitutional determination. Where a constitutional question is raised during trial by a party to the proceedings, the trial court is bound to refer the matter to the High Court for adjudication. Subsection (3) provides:

"If in any proceedings in any court subordinate to the High Court any question arises as to the contravention of any of the provisions of this Chapter, the person presiding in that court may, and shall where a party to the proceedings so requests, stay the proceedings and refer the question to the High Court unless, in the judgment of that person, which shall be final, the raising of the question is merely frivolous or vexatious."

In such cases, the Bill of Rights does not apply directly in that it is not invoked by the parties as the basis of their legal challenge. Rather, it arises by way of a question during non-constitutional proceedings, either because the presiding officer invokes the constitutional question, or because a party to the proceedings does so. The Bill of Rights then applies to that matter indirectly. This is another form of a constitutional matter sanctioned by the Swaziland Constitution. Such referral has the effect of staying the initial proceedings until the constitutional question is determined.27 It is worth noting that the referral in Sihlongonyane was made because the judge did not want to determine the matter alone. He therefore referred it to a full bench of the High Court. The section 35 provision on referrals governs constitutional matters which emanate from subordinate courts, such as Magistrates Courts, and not the High Court.

This is different from the position in South Africa, in that Swaziland’s section 35(3) allows for indirect application of the Bill of Rights in proceedings in "any court", including Magistrates' Courts, labour courts and traditional courts. In the South African context, Magistrates' Courts cannot pronounce on the validity of any law or conduct.28

Section 110(2) of the South African Magistrates Courts Act 32 of 1994 stipulates that when a claim of invalidity is made in regard to a law or conduct due to it being in conflict with the Constitution, the magistrate must continue and decide the matter on the assumption that the law or conduct in question is valid. Any aggrieved party is free to pursue the question in the High Court. The South African position mirrors the one favoured by the dissenting judge in his opinion in Maseko, as will be discussed below.

26 Section 35(4) provides:

"Where any question is referred to the High Court in pursuance of subsection (3) the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, it that decision is subject to an appeal to the Supreme Court, in accordance with the decision of the Supreme Court."

27 Sihlongonyane para 12.28 De Vos P & Freedman W (eds) South African Constitutional Law in Context (Cape Town: Oxford University Press Southern Africa 2014) 224.


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5 LIMITATION OF RIGHTS IN THE SWAZILAND CONSTITUTION

As highlighted above, the Swaziland Constitution does not contain a general limitation clause but employs internal limitations contained within specific provisions.29 In most instances, the internal limitation clauses are a relic of the colonial era, when fundamental rights were made subservient to considerations of defence, public order, public safety and public morality. The two rights invoked by the applicants, namely, freedom of expression and freedom of association, are also subject to these internal limitations.

Section 24 of the Constitution provides: "A person has a right of freedom of expression and opinion". This includes the freedom to hold, receive, and impart information and ideas without interference. However, these freedoms are subject to an arbitrary limitation as indicated above. Section 24(3) provides:

"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that is reasonably required in the interests of defence, public safety, public order, public morality or public health."

The section goes on to list other instances where interference with one’s freedom of expression will not be held to be inconsistent with the constitutional protection. These include instances where the interference is required for the purpose of (i) protecting the rights of others; (ii) preventing disclosure of information received in confidence;(iii) maintaining the authority and independence of the courts; and (iv) regulating the operation of telephony and other technological and communication channels.

The limitation analysis is a two-stage process. First, there must exist a limitation or violation of a right contained in the Bill of Rights. Once that is established, the next question should be: Is there a law sanctioning the violation of the right? In other words, was the conduct complained of done under the authority of any law? If the answer is no, the enquiry ends there, for a limitation that does not flow from any law cannot be justified under the Swaziland Constitution. If the answer is yes, the court can now move on to the next question, where it seeks to establish the purpose of the limitation.

Here the court is guided by the main reason for which the law was passed. It must therefore investigate whether the law limiting the right was passed to serve any of the purposes listed in sections 24(3) and 25(3) of the Constitution. These include public

29 See section 36 of the South African Constitution which provides:

1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose."


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safety, public morality, public health, the interest of defence, the rights and reputations of others, and protecting confidential information. If the law is not found to be advancing any of those purposes, the enquiry ends there. A limitation cannot be found to be legitimate if it does not serve any purpose, that is, any of the purposes listed in sections 24(3) and 25(3). If the limitation is found to be connected to the listed purposes, then the limitation will be deemed a legitimate one.

However, the court must still determine if this legitimate limitation can be justified in a democratic society. This is the second stage. The inquiry in respect of the sections 24 and 25 internal limitation requires the court to determine if that provision stems from a law that is reasonably justifiable in a democratic society. The Constitution requires that the limiting measure be a reasonable one. An otherwise legitimate limitation may still fail the test when it is found not to be rationally connected to any of the purposes, as seen from the perspective of a democratic society.

In the context of Maseko, the applicants were accused of uttering certain words which were regarded by the State as seditious, exhibiting an intention to cause disaffection amongst the population as well as create feelings of ill-will against the King of Swaziland. Some of the words uttered include "Viva PUDEMO Viva", "Phansi ngeTinkhundla Phansi" (translated "Down with the Tinkhundla system of government, Down – Tinkhundla is the bedrock of the "monarchical democracy" that sees the King at the apex of the political framework, and criminalises political opposition and political parties). These statements were regarded as potentially dangerous in that they would cause, amongst other things, "hatred and contempt towards His Majesty the King, his heirs or successors, or the Government of Swaziland".30

In dealing with a constitutional claim based on the above, the question in relation to freedom of expression would be: "Whether a democratic society would reasonably justify the suppression of dissenting voices by a political superior?" Even if a particular law served the purpose of protecting public order and public morality (a very amorphous term) as set out in section 24(3), to the extent that it would not be regarded as reasonable in an open and democratic society,31 such law would fail the constitutionality test.

Hence in paragraph 19, the majority judgment in Maseko decried the fact that nowhere in its affidavit did the respondent state why the limitation was necessary. Neither was its purpose stated. All that counsel for the State did was to tell the Court that the limitation or restriction was reasonably required in the interests of certain public purposes. The list included the purposes listed in section 24(3). Needless to say, the Court found this submission inadequate for the limitation analysis.

30 Section 3(1)(a) of the Sedition Act.31 The limitation clause in sections 24 and 25 makes reference to "a democratic society", whilst the preamble regards Swaziland as "an open and democratic society". Hence the use of the two interchangeably throughout this article.


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The Court, relying on Australian jurisprudence,32 proceeded to introduce the two-stage approach to Swaziland’s limitation analysis. It opined that two questions ought to be posed before the validity of the impugned provision can be determined. First, does the law effectively burden (or limit) a particular right? Secondly, if the law does indeed burden that right, is the law appropriate and adapted to serve a legitimate end? If the answer to the first question is in the affirmative, and that to the second one is in the negative, the law cannot be valid.

This effectively means that for an impugned provision to pass constitutional muster under the section 24 internal limitation, it must pass two tests. First, the provision must be one that is required in the interests of public safety, morality, defence etc. Alternatively, the provision must be necessary to protect the rights of others, the integrity of the courts, or confidential information, or to regulate communications channels. Once that is established, the second leg of the enquiry relates to the reasonableness of the provision in a democratic society.

For a court to effectively analyse a limiting measure it is imperative for the party alleging that the measure is justifiable to present the court with evidence in support of such assertion. This, as the Court stated in paragraph 19, must demonstrate the mischief that the limiting measure sought to curb or remedy. Only then can the reasonableness of the limiting measure be assessed.

Section 25 of the Swaziland Constitution provides for freedom of assembly and association, and stipulates:

"(1) A person has the right to freedom of peaceful assembly and association.(2) A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of peaceful assembly and association, that is to say, the right to assemble peacefully and associate freely, with other persons for the promotion or protection of the interests of that person."

Section 25 is limited in much the same way as section 24, by reference to the internal limitation. However, it must be noted that section 25 has an additional internal limitation, which was designed to restrain the enjoyment of the freedom of assembly and association by and through juristic persons. Section 25(4) provides:

"Without prejudice to the generality of subsection (2), nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) for the registration of trade unions, employers organisations, companies … and other associations including provisions relating to the procedure for registration, prescribing qualifications for registration and authorising refusal of registration on the grounds that the prescribed qualifications are not fulfilled; or

(b) for prohibiting or restricting the performance of any function or the carrying on of any business by any association as is mentioned in paragraph (a) which is not registered."

It is our argument that section 25(4) was influenced by elements of "monarchical democracy", which have become deeply entrenched over the years. From 1973 to 2006 when the current constitution came into force, the King ruled by virtue of a royal

32 Lange v Australian Broadcasting Corporation 145 ALR 96 (1997).


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decree, the King’s Proclamation to the Nation of 12 April 1973.33 This decree was the supreme law, and conferred upon the King all judicial,34 legislative and executive powers.35 This is the same royal decree that banned all political parties, meaning that entities, such as PUDEMO, exist illegally to this day.

The import of section 25(4) is that no natural person can attempt to or successfully register a political party in Swaziland. In essence it allows the State to make laws prohibiting the registration of certain organisations; and laws prohibiting the carrying out of any activities by juristic persons. The constitutional provision acts as an internal limitation in the sense that the rights of both juristic persons (for example, a political party) and natural persons (who could be members of a political party) to freely assembly and associate can be limited by legislation as and when the government decides. Such law shall not be held to be inconsistent with the Constitution. The problem is that section 25(4) does not contain the proportionality test which requires the law or the limiting measure to be assessed for its reasonableness in an open and democratic society. In the absence of a general limitation clause, this is a very unfortunate situation.

The situation may not be too gloomy, given the growing rights centred jurisprudence coming out of the Swaziland courts. In any future challenge to such limiting laws the court could likely embark on a limitation analysis that takes into account the values that underlie the Swaziland Constitution. Further, the existence of legal precedent that stipulates the procedure for determining if a limiting measure is justifiable means that there is now precedent on which the court could rely to interpret any right in the Bill of Rights. The courts have already invoked several authorities from the South African jurisdiction to support their conclusion.36 Further, they have placed

33 Through this royal decree, the then King, Sobhuza II, unilaterally abrogated the Independence Constitution, which did not have any clauses regulating its repeal, save for provisions regulating its amendment. King Sobhuza II announced the repeal and at the same time proclaimed:

"I further declare that, to ensure the continued maintenance of peace, order and good government, my Armed Forces in conjunction with the Swaziland Royal Police have been posted to all strategic places and have taken charge of all government places and all public services."

In para 11 of the Proclamation, the King decreed:

"All political parties and similar bodies that cultivate and bring about disturbances and ill-feelings within the Nations are hereby dissolved and prohibited."

34 In para 3 of the Proclamation, the King decreed:

"NOW THEREFORE I, SOBHUZA II, King of Swaziland, hereby declare that, in collaboration with my Cabinet Ministers and supported by the whole nation, I have assumed supreme power in the Kingdom of Swaziland and that all Legislative, Executive and Judicial power is vested in myself."

35 Dube & Nhlabatsi (2016) 267.36 See the following list of cases that the Court relied upon to adopt a limitation analysis based on the South African version: Gardener v Whitaker 1995 (2) SA 672 (E); S v Zuma 1995 (2) SA CC; Makwanyane; Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women’s Legal Centre as Amicus Curiae) 2001 (4) SA 491 (CC); Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and others 2005 (SA) 280 (CC); and Bernstein v Bester NO 1996 (2) SA 751.


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reliance on Canadian jurisprudence to develop the limitation formula for Swaziland. For example, in The King v Swaziland Independent Publishers (Swaziland Independent Publishers),37 the Court cited with approval the Canadian approach in Queen v Oakes.38 It seems from the emerging jurisprudence that even in the absence of clear internal limitations, the Swaziland High Court is developing an overarching general limitation clause.

6 THE MISAPPLICATION OF THE LIMITATION CLAUSE IN THE DISSENTING JUDGMENT

Despite the progressive and generous interpretation of the Constitution that informed the majority judgment, the dissenting judgment of Hlophe J is a cause for concern. It should be noted from the outset that the Hlophe judgment seems to indicate a preconceived position on the part of the judge, that the applicants had no case at all. This was the first instance of misapplication of the limitation clause. Hlophe J believed that at the time the Court heard the application, no rights had been affected or threatened, and as such the applicants had no case.39

Hlophe J based his reasoning on a misunderstanding of the law, in particular section 35 of the Constitution which regulates standing in the Swaziland context. The operative words in section 35 are that for an applicant to have standing, he must allege that any of his rights "has been, is being, or is likely to be" contravened. In the judge’s opinion, this can only happen after conviction. It is hard to reconcile this with the notion of transformative constitutionalism, where State institutions should be used to ensure fundamental rights and not to clamp down on dissenting political voices. It is our argument that as soon as the applicants were charged, several of their rights automatically fell within the category of rights which were either threatened or violated. These include freedom of movement as they were incarcerated as a result of the charges preferred against them. Further, their freedoms of expression, association and assembly were threatened by this law. The fact that when they moved their constitutional application all four applicants were out on bail lends credence to this argument.

The second misapplication involved the creation of new jurisprudence in vacuo, much against established principles of constitutional litigation. Judge Hlophe did this when he held that the onus to prove that a limitation is not justifiable lies on the party alleging it, in other words, the applicant.40 This is not the position in Swaziland, as the High Court has already established otherwise. In Swaziland Independent Publishers,41

the Court stated that the onus is on the party seeking to rely on the limitation, that is the

37 [2013] SZHC 88.38 (1987) LRC (Crim).39 At para 20 of the dissenting judgment. 40 At para 46 of the dissenting judgment. 41 At paras 92 and 94.


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respondent (State). This is similar to the position in South Africa, and the Swaziland courts have relied on South African cases that underscore that legal position. Judge Hlophe decided to create new law that is not supported by any jurisprudence. He insisted that the onus lies on the applicant, and he erroneously relied on Swaziland Independent Publishers. This is very concerning given that it poses a real risk that the public may lose confidence in the judiciary if judges will disregard the law as it stands and create their own rules which are not supported by any legal force.

7 CONCLUSION

The latest judgments to come from the Swaziland High Court, especially on constitutional issues, give hope that perhaps, after decades of royal supremacy, constitutional supremacy will finally be established. It seems from the few progressive judgments that have been handed down that a semblance of judicial independence is finally returning to the halls of justice. The reliance on the Constitution as a living document in the judgment of Mamba J indicates that transformative constitutionalism is now at the centre of judicial reasoning. There are still concerns though, given judgments, such as Hlophe J’s dissent in this case. His reasoning is still aligned with pre- constitutional thinking, where any entity or individual that claimed rights that pitted them against "monarchical democracy" would not have a remedy before the Swaziland courts. Such a pre-constitutional stance tended to dispense with reason, and was motivated by emotions of loyalty to royalty instead of the independence and impartiality that ought to form the basis of the work of judges. This can be seen in Hlophe J’s disregard for existing jurisprudence on the limitation analysis. It is hoped that this newly-found momentum on the part of judges does not abate due to political pressure and intimidation.



VOLUME 22 (2018)DOI:3 ISSN:2077-4907

Cultural and Religious Diversity: Are they effectively accommodated in the South African workplace?

MONIQUE PRINSLOO,

Lecturer, Faculty of Law, University of Cape Town

ELSABÉ HUYSAMEN,

Lecturer, Faculty of Law, University of the Western Cape

1 INTRODUCTION

Justice Yvonne Mokgoro1 and Archbishop Emeritus Desmond Tutu2

are but two of many public figures who have described South Africa as a “Rainbow Nation” – an expression used to highlight South Africa’s multicultural diversity.3 “Rainbow” is used to visually emphasise the various races, cultures,

1 Justice Mokgoro was a judge of the Constitutional Court of South Africa from 1994 until 2009. See at http://www.constitutionalcourt.org.za/site/jud ges/justiceyvonnemokgoro/index1.html (accessed 17 February 2016).2 Archbishop Tutu is a human rights activist. See at http://desmondtutu.org/ (accessed 17 February 2016).3 South African Tourism “South Africa’s Rainbow Nation” available at http://www.southafrica.net/za/en/articles/entry/article-southafrica.net-south-africas-rainbow- nation (accessed 20 August 2015).

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backgrounds and religions, to name but a few, of South Africa’s inhabitants.4 Yet, whilst diversity is in general regarded as good and necessary for societies to progress and evolve, practically managing diversity in micro-entities, such as places of work, unfortunately often turns out to be quite complicated.

With diversity in mind, the general focus of this article will be on cultural and religious diversity in the South African workplace. Consequently, the meaning of “culture” and “religion” will be explored, albeit briefly, in contextualising the rest of the discussion. The article will attempt to illustrate that despite the competing cultural and religious interests of parties (with a focus on the competing interests of employers and employees in particular), South African courts appear willing to go to considerable lengths to protect the exercise of employees’ constitutional rights in this regard.5 In doing so the article will briefly explore cultural and religious diversity in South Africa, and in particular how such diversity filters through to, and is addressed in, the work environment. The article will proceed to consider existing legislation which addresses cultural and religious diversity in the South African workplace, and how such legislation has been implemented and interpreted by arbitrators and judges to date.

2 UNDERSTANDING CULTURE AND RELIGION

Culture is said to be dynamic - it can take many forms and has many levels. It is therefore not surprising that there are varied notions of what constitutes the essence of culture. Some writers claim that culture boils down to practices.6 Others again advocate the idea that symbols are clear manifestations of culture.7 Symbols are understood to be “words, gestures, pictures, or objects that carry a particular meaning that is recognised as such only by those who share the culture”.8 None of these are incorrect, and in fact, in order to fully address culture within the workplace, one needs to remain mindful of the various means through which culture may be expressed. Kluckhohn defined culture as

“patterned ways of thinking, feeling and reacting, acquired and transmitted mainly by symbols, constituting the distinctive achievement of human groups, including their embodiment in artifacts; the essential core of culture consists of traditional (i.e. historically derived and selected) ideas and especially their attached values”.9

4 Mokgoro Y “Ubuntu and the law in South Africa” (1998) 1(1) Potchefstroom Electronic Law Journal 4 and LeBaron M & Pillay V Conflict across cultures: a unique experience of bridging differences (Boston: Intercultural Press 2006) 2.5 The discussion will take place against the background of the Constitution of the Republic of South Africa, 1996, which protects and preserves both cultural and religious rights.6 Hofstede G, Hofstede GJ & Minkov M Cultures and organisations: software of the mind 3ed (New York: McGraw-Hill Education 2010) 9.7 Kluckhohn C The study of culture (1951) 86, in Hofstede, Hofstede & Minkov (2010) 7 & 8.8 Hofstede, Hofstede & Minkov (2010) 8.9 Kluckhohn (1951) 86 in Hofstede, Hofstede & Minkov (2010) 7 & 8.


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Hofstede similarly defined culture as “the collective programming of the mind which distinguishes the members of one human group from another... Culture, in this sense, includes systems of values; and values are among the building blocks of culture”.10

The above seems to suggest that culture to a large extent abides within traditions and legacies of communities.11 Culture forms the foundation of what groups regard as right and wrong. It encompasses value and belief systems - a shared and frequently unspoken understanding of individuals.12 Moreover, culture underpins the way in which individuals perceive and interpret ideas and concepts.13 Culture forms a pertinent part of life as it is experienced on a day-to-day basis and can consequently not be escaped.

Religion again is generally understood as being based on faith, belief and practices.14 It comprises doctrines, teachings, ethical standards and principles, all containing specific views of the world.15 In attempting to better understand the constitutional right to freedom of religion, considering Constitutional Court (CC) decisions on the issue is important.16 In S v Lawrence; S v Negal; S v Solberg (Lawrence),17 Chaskalson P referred to the definition of freedom of religion as relied on in the Canadian case R v Big Drug Mart Ltd.18 In this case it was held that

“[t]he essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination”.19

It becomes evident that the right to freedom of religion becomes compromised when there is a limitation on an individual’s ability to act on his/her religious beliefs.20 Many writers are of the opinion that there seems to be a notable overlap between culture and

10 Hofstede G Culture’s consequences: international differences in work-related values (London: Sage 1984) 21.11 LeBaron & Pillay (2006) 2.12 LeBaron & Pillay (2006) 14.13 LeBaron & Pillay (2006) 14.14 In Prince v President of the Law Society of the Cape of Good Hope and others 2001 (2) SA 388 (CC), para 97, the following was stated: “Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike non-believers as bizarre, illogical or irrational. Human beings may freely believe in what they cannot prove. Yet that their beliefs are bizarre, illogical or irrational to others, or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion. The believers should not be put to the proof of their beliefs or faith. For this reason, it is undesirable for courts to enter into the debate whether a particular practice is central to a religion unless there is a genuine dispute as to the centrality of the practice.”15 Crawford RG What is religion? (London: Routledge 2003) at 1-8.16 S v Lawrence; S v Negal; S v Solberg 1997 (10) BCLR 1348 (CC). Christian Education South Africa v Minister of Education (2000) (4) SA 757 (CC), Prince v President of the Law Society of the Cape of Good Hope and others 2001 (2) SA 388 (CC) and MEC for Education, Kwazulu-Natal, and others v Pillay 2008 (1) SA 474 (CC).17 1997 (10) BCLR 1348 (CC).18 (1985) 18 DLR (4th) 321.19 Lawrence para 92.20 Lawrence para 92.


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religion.21 The key components thus shared between culture and religion include ideas, values, and the behaviour of individuals or a group. It is contended that culture has a religious affiliation and component to it,22 and that culture and religion might even be a subset of each other.23 For purposes of this article it is accepted that culture and religion indeed often overlap, and in fact frequently co-exist. Therefore, a clear distinction between the concepts in the arbitration and court judgments discussed below is not always achieved. The article will now discuss how cultural and religious diversity is addressed in the South African workplace. In order to properly do so, a brief overview of legislation relevant to culture and religion in the workplace is first required.

3 LEGISLATION ADDRESSING CULTURE AND RELIGION IN THE SOUTH AFRICAN WORKPLACE

On entering an era of democracy, and the subsequent dismantling of apartheid, South Africans were introduced to a new era of relationship building by way of reconciliation and forgiveness. Accordingly, relationships had to be built anew across all races and cultures.24 Steering South Africa into this new democratic era of relationship building were, first, the interim Constitution of 1993 (interim Constitution), and thereafter the final Constitution of 1996 (Constitution).

Prior to the adoption of the interim and ultimately the final Constitutions, discrimination was a widely occurring practice, and in some instances even entrenched in legislation.25 With the adoption of a Constitution, however, values underlying an open and democratic society, such as, human dignity, equality, and the advancement of human rights and freedoms, became a reality for all individuals.26 Whilst on paper these rights should without fail or undue delay be available to all, complete enjoyment thereof remains out of reach for many, particularly in the employment environment.27

The Constitution further states that South Africa “belongs to all who live in it, united in our diversity”.28 Accordingly the Constitution pronounces that, among others,

21 Lee I ‘In re culture: the cross-cultural negotiations course in the law school curriculum’ (2005) 20 Ohio St. J. on Disp. Resol. 375 & 378.22 LeBaron & Pillay (2006) 14.23 Lee (2005) 375 & 378. See also Hofstede, Hofstede & Minkov (2010) 18 in which the writer argues that culture has many levels, one of which includes religion.24 LeBaron & Pillay (2006) 22.25 See, inter alia, the Masters and Servants Acts of 1856, the Group Areas Act 41 of 1950 and the Prohibition of Mixed Marriages Act 55 of 1949.26 Constitution s 1. Section 7 of the Constitution further states that the Bill of Rights “…enshrines the rights of all people in our country…”. See further, s 9 of the Constitution which stipulates that “[e]veryone is equal before the law and has the right to equal protection and benefit of the law”.27 Constitutional rights and values have not been realized in practice by the majority of previously disadvantaged individuals. See, inter alia, the Labour Court's First Discrimination Case (1998) 19 ILJ 709, Not 'Work Like Any Other': Towards a Framework for the Reformulation of Domestic Workers' Rights (2011) 32 ILJ 1, and ‘Strike Law, Structural Violence and Inequality in the Platinum Hills of Marikana’ (2013) 34 ILJ 836.28 Preamble of the Constitution.

CULTURAL & RELIGIOUS DIVERSITY IN SOUTH AFRICAN WORKPLACE

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culture and religion should be safeguarded and protected.29 This is profound in appreciating the role that both religion and culture, in all their diverse forms, could potentially play in uniting a country. The equality clause of the Constitution states that “[t]he state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including…religion…, [and] culture…”.30 It thus becomes clear that in drafting the Constitution the significance of protecting culture and religion was strongly appreciated.

The Constitution is the supreme law of South Africa against which all government action and legislation must be measured. Any law or conduct inconsistent with the values enshrined in the Constitution is invalid,31 and may consequently be declared unconstitutional.32 There is therefore no single area of law in South Africa that remains unaffected by constitutional principles. With regard to labour relations, section 23 of the Constitution is the central provision.

Section 23(1) affords everyone the right to equality and fair labour practices. The constitutional right to fair labour practices should generally be widely interpreted, and includes rights, such as, protection against unfair discrimination, unfair treatment, and unfair disciplinary action or dismissal. The constitutional right to fair labour practices accordingly co-exists with those of cultural and religious beliefs and practices. Within the protection afforded by section 23, the Labour Relations Act 66 of 1995 (LRA), the Basic Conditions of Employment Act 75 of 1997 (BCEA), and the Employment Equity Act 55 of 1998 (EEA), among others, were enacted. Of particular importance to religion and culture in the workplace are the LRA and the EEA.

The LRA protects employees against dismissal for a reason based on unfair discrimination. This entails that where the reason for the dismissal is that the employer unfairly discriminated against an employee on any arbitrary ground, which includes the grounds of culture and religion, such dismissal will be regarded as automatically unfair.33 Similarly, a core feature of the EEA is to promote equal opportunity and fair treatment in the workplace by eradicating unfair discrimination.34 Section 6(1) of the

29 Constitution ss 15, 30 & 31.30 Constitution s 9(3).31 Constitution s 2.32 Govindjee A & Van der Walt AJ “Labour law and the Constitution” in Van der Walt A et al (eds) Labour law in context (Cape Town: Pearson Education 2012) 3.33 LRA s 187(1)(f). However, in terms of s 187(2)(a), “a dismissal may be fair if the reason for the dismissal is based on an inherent requirement of the particular job”. See further, s 6(2)(b) of the EEA, that “It is not unfair discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job”, and the ILO, Discrimination (Employment and Occupation) Convention, C111, 25 June 1958, C111, art 1(2) available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111 (accessed 29 September 2016). South Africa ratified this Convention (Discrimination Convention) on 05 March 1997. It states: “Any distinction, exclusion or preference in respect of a particular job based on an inherent requirement thereof shall not be deemed to be discrimination”. Thus, the inherent requirements of a particular job can be raised as a defence, if a job necessitates a certain characteristic, and it will not amount to unfair discrimination where the employer excludes individuals without that exact characteristic.34 EEA s 2(a).


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EEA states that “[n]o person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including…religion…[and] culture….”.35 The article now considers selected case law illustrating how South African arbitrators and judges have approached balancing an individual’s cultural and religious beliefs and practices against an employer’s rights within the employment environment.

4 EXPRESSING RELIGION AND CULTURE IN THE WORKPLACE: A DISCUSSION AND ANALYSIS OF SELECTED ARBITRATION AND COURT DECISIONS

4.1 Physical expression of cultural and religious beliefs

In Dlamini & others v Green Four Security36 (Dlamini) the Labour Court (LC) was called upon to consider a claim of unfair discrimination. The employees, security guards, were dismissed after refusing to shave/trim their beards on the order of the employer. The employees argued that they were members of the Baptized Nazareth group and that it was against their religious convictions to trim their beards. The employees contended that their dismissals were automatically unfair in terms of section 187(1)(f) of the LRA, in that they were discriminated against on the basis of their religion. The employer however maintained that the employees were contractually bound to be clean-shaven. The LC applied the following enquiry to determine whether unfair discrimination took place

“(a) Did the rule that security guards should be clean-shaven differentiate amongst employees? The answer is 'No'. Everyone had to be clean-shaven. (b) Did the respondent apply the rule consistently to all employees? The answer is 'Yes'. (c) Did the rule impact on all employees alike, irrespective of their religion? The answer is 'Yes'. Anyone who wore a beard ran the risk of being disciplined. (d) Did the rule trench upon the applicants’ religion? The applicants failed to prove the no-shaving rule was an essential tenet of the Nazareth faith. They have therefore not proven that they were discriminated on account of their religious beliefs.”37

In considering the workplace rule itself, the LC concluded that the importance of the workplace policy (that guards had to be clean-shaven) in this specific matter outweighed the reliance placed by the employees on a specific religious rule. The LC balanced the two competing views, and ultimately found in favour of the workplace policy. The rationale for the rule was to promote neatness within the workplace. The LC was of the view that the rule was justified by the integral need to be orderly and tidy, and to uphold the company’s unique image.38 The employer was entitled to set a dress

35 See also, the constitutional law test for discrimination based on Harksen v Lane NO and others (1) SA 300 (CC) (1997). There are only two exceptions to this general rule: it is not unfair discrimination where an employer has to take affirmative action measures; or where an employer distinguishes, excludes or prefers a person based on an inherent requirement of the job, s 6(2)(b) EEA.36 (2006) 27 ILJ 2098 (LC).37 Dlamini para 27.38 Dlamini para 63.


44 Department of Correctional Services & another v POPCRU & others (107/12) [2013] ZASCA 40 para

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code as one of the conditions of employment as a security officer.39 The LC held that the rule was not arbitrary or irrational.40 In balancing the employees’ religious rule against the company’s workplace rule, the workplace rule prevailed under the circumstances as it had a legitimate purpose.

In Police & Prisons Civil Rights Union & others v Department of Correctional Services & another (Police & Prisons Civil Rights Union)41 the Court was again required to deal with issues of personal appearance and culture. The dismissed employees, all practising members of the Rastafarian faith, failed to follow an instruction from their employer to cut their dreadlocks. The employer argued that the wearing of dreadlocks breached its dress code policy. The employees argued that they wore dreadlocks due to their religious and cultural beliefs and practices. Consequently, the employees challenged their dismissals as being automatically unfair in terms of section 187(1)(f) of the LRA. The claim was based on grounds of cultural and religious discrimination.

The employees argued that based on their religious and cultural beliefs there was no justification for the employer to force them to remove their dreadlock hairstyles. The LC found in favour of the employees, albeit not on gender discrimination. Female employees were permitted to continue wearing their dreadlocks. The employer took the matter on appeal to the Labour Appeal Court (LAC).42 The employees lodged a cross-appeal, remaining adamant that they had been dismissed on the grounds of religion and cultural practices, and not as a result of gender discrimination.

The LAC held that the employer’s dress code, which prohibited so-called “Rasta man” hairstyles, were not neutral in its operation. It enforced mainstream notions to the detriment of minority and historically excluded groups. The dreadlocks in no manner compromised the employer’s concerns of discipline, security and performance. Hence, there was no basis for forcing the employees to get rid of their dreadlocks. Ultimately the rule restricted the employees from expressing their Rastafarian beliefs without any rational justification. Wearing a dreadlock hairstyle signaled allegiance to the Rastafarian religion.43 The LAC concluded that it was de facto simply the dreadlock hairstyle and the refusal to cut the dreadlocks that led to the employees’ dismissals. The matter was subsequently also taken on appeal to the Supreme Court of Appeal (SCA), but the SCA dismissed the appeal, thus upholding the LAC’s judgment. The SCA summarised its stance concisely in holding that “[w]ithout question, a policy that effectively punishes the practice of a religion and culture degrades and devalues the followers of that religion and culture in society; it is a palpable invasion of their dignity which says their religion or culture is not worthy of protection and the impact of the limitation is profound”.44

39 Dlamini para 63.40 Dlamini para 62.41 (2010) 31 ILJ 2433 (LC).42 Department of Correctional Services & another v Police & Prisons Civil Rights Union & others (2011) 32ILJ 2629 (LAC).43 Grogan J “Dreadlocked: much hairdo about nothing?” (2010) 26(5) Employment Law 11.


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Whilst not an employment matter, the case of MEC for Education, Kwazulu-Natal, and others v Pillay (Pillay),45 further illustrates the lengths our courts, in this instance the CC, are willing to go to protect the expression of cultural and religious beliefs. A student, Sunali Pillay, wore a nose stud to school. The school, however, did not permit the wearing of nose studs. The student’s mother (Ms Pillay) was of the view that by not permitting her daughter to wear a nose stud the school was unfairly discriminating against her daughter on the basis of religious and cultural rights.

Langa CJ maintained that where it was of significant importance for a learner to wear a nose stud for purposes of religious and/or cultural beliefs, then it should be permitted notwithstanding the fact that this was at odds with the particular school’s code of conduct. In this instance the wearing of a nose stud was a long-standing family tradition and part of the student’s South Indian, Tamil and Hindu identity/heritage.46

Nose studs in the Indian faith are quite significant as they embody a very special meaning.47 By forming a principal part of Indian descendants’ culture, the student was symbolically affirming her connection to the Indian community by wearing a nose stud.48

Grogan suggests that a core reason why the Constitution seeks to protect individual freedoms is to prevent discrimination based on innate characters of individuals.49 The golden thread throughout all the aforesaid cases seem to be that the physical appearances in question all formed part and parcel of the specific individuals’ make-up and identity, based on their cultural and/or religious belief systems. Adhering to certain appearances or styles in a particular manner was of significant importance to these individuals. By disregarding their belief systems, it essentially meant that the employers were disregarding their individuality.

4.2 Adherence to cultural and religious based practices and beliefs

The discussion will now turn to cases where employees were absent from work, without permission, for reasons related to cultural beliefs and practices. In Food & Allied Workers Union & others v Rainbow Chicken Farms (Food & Allied Workers Union),50 the LC was called upon to consider the issue of adhering to specific cultural holidays within the workplace. Eid ul Fitr (Eid) is a momentous day celebrated in the Islamic faith. 51 Eid is however not a recognised national public holiday in terms of South Africa’s Public Holidays Act.52 Eid is a celebration of the end of the holy month of Ramadan when Muslims celebrate with family and friends.53 In the matter under discussion, the

45 2008 (1) SA 474 (CC).46 Pillay paras 7, 17, 23, 58 & 90.47 Pillay paras 11, 15 & 58.48 Pillay para 11.49 Grogan (2010) 4.50 (2000) 21 ILJ 615 (LC).51 Food & Allied Workers Union paras 7 & 33.52 Act 36 of 1994. See further, Food & Allied Workers Union para 8.53 Food & Allied Workers Union para 7.


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employees refused to report for duty on Eid, despite their employer’s insistence that they do so. The employees were subsequently dismissed for insubordination.

The LC was of the opinion that the employees had a good reason for failing to report for duty because of their religious beliefs and practices. The employer showed little, if any, regard for the employees’ cultural and religious beliefs. Ramadan and the celebration of Eid constitute a great part of the employees’ identities, and the employer blatantly disregarded these celebrations. Accordingly, the Court concluded that the employees’ dismissals were substantially unfair.

In Lewis v Media 24 Ltd (Lewis)54 the applicant employee, a Jewish male, was required by his employer to work long and late hours. As a result, the employee would have been unable to observe the Sabbath.55 Apart from attempting to force him to work on the Sabbath, the employee also claimed that the employer made offensive remarks regarding his celebration of the Sabbath. Subsequently, the employee’s contract was terminated because of his absence from work without permission.56 The employee alleged that he had been unfairly discriminated against based on religious, cultural and political beliefs.57 The employer raised the issue of whether the employee was sincerely committed to observing his religious practice. The Court held that when appointed the employee did not declare to his employer that he was a Jew, and neither did he object to working on the Shabbat. Doubt existed as to whether the employee was sincere in his religious commitment. The application was accordingly dismissed.

In the matter of Building Construction & Allied Workers Union on behalf of Zondi and Kusile Civil Works Joint Venture,58 the employee, an African male, approached a traditional healer.59 The employee argued that he required the assistance of the traditional healer in order to part with his grandfather’s spirit which he claimed was harassing him. This resulted in the employee’s dismissal for being absent from work without permission. The arbitrator presiding over the matter concluded that the reason for the employee’s absenteeism was justifiable since it was inherently linked to his culture. It was held that the employer had ‘shown a lack of empathy and understanding for cultural diversity’.60

In Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & others,61 the employee claimed to suffer from visions/premonitions. She approached a traditional healer to assist her to interpret these visions. It was the opinion of the traditional healer that the

54 (2010) 31 ILJ 2416 (LC).55 This is the seventh day of the week to Jews, and the day on which they rest in order to honour God.56 Lewis paras 117 & 119.57 EEA s 50(2)(a).58 Building Construction & Allied Workers Union on behalf of Zondi and Kusile Civil Works Joint Venture(2013) 34 ILJ 2395 (BCA) (hereafter, Building Construction & Allied Workers Union).59 A traditional healer is someone who utilises traditional medicine to cure various illnesses, commonly referred to as a traditional African sangoma.60 Building Construction & Allied Workers Union, para 57.61 Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & others (2014) 3 BLLR 207 (SCA) (hereafter Kievits Kroon Country Estate).


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employee’s ancestors were calling her to become a sangoma.62 In order to do so the employee had to undergo a training process. The training consisted of ritual ceremonies conducted over an extended period. This would require the employee to take leave from work in order to undergo the training.

Initially the employee’s employer was willing to accommodate her with leave requests. The employee’s absence from work eventually however become an issue, especially on instances where the employee allegedly stayed away from work without permission. The employee was ultimately dismissed for continued absence from work without permission. The Commission for Conciliation Mediation and Arbitration (the CCMA) held that the employee had a valid reason for being absent from work and therefore her conduct had been justified. The LC confirmed the CCMA’s award as having been rational.

The matter was subsequently taken on appeal to the LAC, and ultimately the SCA, where the employee’s dismissal was found to have been substantively unfair. According to the SCA it was important for the employee “[t]o obey [her] ancestors’ call to become[a] traditional healer in accordance with [her] Xhosa culture”.63 The SCA held that although, if seen from the employer’s perspective, the reason for the employee’s absence might have seemed trivial, because of her cultural and traditional beliefs she genuinely believed that she had to adhere to her ancestors calling. Therefore, from the perspective of the employee, she had to respect her ancestors calling. If this meant taking unpaid leave from work, it was the route the employee was willing to take, and the employer could have reasonably accommodated her. The SCA concluded by stating that as a community, individuals need to reasonably accommodate each other in order to live in harmony and achieve a united society.

Both the Kievits Kroon Country Estate and the Building Construction & Allied Workers Union cases involved cultural practices linked to traditional healers. In the African tradition, the use of sangomas is part of custom, with custom forming “part of a culture’s norms, which is, accepted and prescribed models of behavior (sic)”.64 Hofstede defines rituals as a collective activity that is crucial to achieve a goal within a particular culture.65 The Constitution acknowledges and recognises the traditional beliefs and practices of individuals and groups.66 The conduct and practices of the employees in the aforesaid cases were part of their identities. Whilst some might find it strange for individuals to claim that they are able to communicate with the departed and have supernatural powers, these practices form part of culture, and subsequently individuality.

It is understandable that someone who does not practise these rituals would not understand the meaning and importance thereof. However, individuals living in a

62 In Southern Africa, a traditional healer or diviner.63 Kievits Kroon Country Estate para 23.64 Ackerman GR (ed) Cross-cultural negotiations & dispute resolution: readings & cases (East Brunswick, NJ: University Publishing Solutions 2003) 4.65 Hofstede, Hofstede & Minkov (2010) 9.66 Constitution ss 30 & 31(1).


71 Prince para

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diverse country, such as South Africa, should respect and have due regard for other individuals who carry out certain rituals that are essential features of their identities. The Kievits Kroon Country Estate and the Building Construction & Allied Workers Union cases illustrate how far our courts are willing to go to uphold cultural beliefs and practices. The different outcomes of the two cases could however be attributed to the fact that the LC and LAC approached their respective cases differently. The LC did not consider the cultural component of the dispute, whereas the LAC’s outcome was predominantly based on the cultural component.

5 CLASH BETWEEN LAW AND CULTURE/RELIGION

The awareness of culture is fundamental to addressing cultural conflict.67 Yet, what happens where cultural and religious beliefs and practices are argued to be against a national law?

The Court in Prince v President of the Law Society of the Cape of Good Hope and others (Prince)68 had the opportunity to consider this question. The CC had to consider what should happen where culture dictated certain actions and behaviour where these actions were regarded as being unlawful. In the Prince matter, the appellant was a practising Rastafarian who utilised cannabis for alleged religious purposes. He was also a candidate attorney who had applied to the Cape Law Society to be admitted as an attorney. The Cape Law Society (Society) rejected his application on the basis that he did not satisfy the Society’s prerequisite of being a “fit and proper” person.69 The Society contended that the appellant had previous convictions pertaining to the possession of cannabis. The appellant further also indicated that he would continue utilising cannabis.

The possession and utilisation of cannabis was at the time of the Prince judgment still prohibited under South African law.70 Mr Prince approached the SCA to plead for a religious exemption in order to practise as a Rastafarian. The case was subsequently referred to the CC on constitutional grounds. The CC held that though “[t]he appellant has shown himself to be a person of principle, willing to sacrifice his career and material interests in pursuance of his beliefs”,71 the exemption could not be granted as it was not in the public interest to do so.

The Prince case clearly illustrates the extent to which some individuals will go to protect their cultural and religious beliefs. Seen from Mr Prince’s perspective, the smoking of cannabis was essential to his spirituality, and that spirituality was deeply rooted in his religion and culture. It would however be difficult to argue that the CC’s

67 Cultural conflict occurs when individuals disagree on matters pertaining to their personal set of values and beliefs. LeBaron & Pillay (2006) 15.68 2001 (2) SA 388 (CC).69 “Fit and proper” means not having a criminal record and not being involved in any illegal activities.70 Drugs and Drug Trafficking Act 140 of 1992.


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ultimate finding was incorrect. The CC had the difficult task to balance the factors of legality and public policy with an individual’s cultural beliefs.

In Uasa on behalf of Zulu and Transnet Pipelines (Uasa)72 it emerged that the applicant employee was making demands for sex to a female colleague. When his colleague rejected him on a particular occasion, he grabbed her and tried to lift her skirt. Fortunately, a supervisor interrupted the incident. During the arbitration hearing, the applicant openly admitted to the charges. He however professed that his conduct was “part of his Zulu culture”. The arbitrator rejected the argument that asking for sex and subsequently harassing a female colleague formed part of the applicant’s “Zulu culture”. The arbitrator referred to the constitutional right individuals have, to have their dignity respected and protected.73 The arbitrator reasoned that the female employee’s right to dignity far outweighed the male employee’s alleged cultural behaviour.

6 STEREOTYPING

Stokwe v Member of the Executive Council Department of Education, Eastern Cape Province and another (Stokwe)74 involved issues of stereotyping, bias and prejudice towards a certain individual due to his language. Mr Stokwe had applied for the position of principal at a primary school. Based on the scoring model used, the interview panel had ranked the applicant first of the shortlisted candidates. However, the panel preferred the second ranked candidate merely because the applicant had an African name. Based on this one factor the panel had subjectively concluded that the employee would not be able to speak Afrikaans fluently.

The LC was of the view that this was a clear example of the manifestation of stereotypes, bias and prejudice. The LC further held that this conduct indicated a blatant disregard for South Africa’s democratic constitutional order and transgressed the values that the South African Constitution sought to uphold.

Grant Ackerman75 maintains that there are various elements to culture and that language is one of these elements.76 An important relationship exists between culture and language,77 leaving “communication and culture… inseparable”.78 In a country, such as South Africa, where there are eleven official languages, prejudicing an employee for not speaking a particular language is fundamentally prejudicing someone on cultural grounds. The LC in the Stokwe confirmed that it was the value of culture that the LC sought to maintain.

72 (2008) 29 ILJ 1803 (ARB).73 Constitution s 10.74 (2005) 26 ILJ 927 (LC).75 Grant Ackerman is a professor of management at Columbia Business School whose teaching highlights cross-cultural issues in management.76 Ackerman (2003) 5 & 9.77 Ackerman (2003) 9.78 Ackerman (2003) 4.


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7 CONCLUSION

At any given time in the workplace, it is quite common to find a large number of diverse individuals. Diversity presents in many forms, with religion (faith, practices, beliefs) and culture (customs, traditions, rituals, practices) having been the focus of this article. Within organisations these customs and traditions may lead to tension and conflict between employers and employees. Individuals express themselves and behave in ways that are different from those of others.79 Culture and religion are present in all areas of life and cannot be isolated from everyday life. It is therefore pertinent for individuals to be able to clearly identify cultural differences, and in doing so adapt to differences. Individuals will not always agree with others on all cultural and religious behaviours and practices, but they should respect and acknowledge different cultural beliefs within the bounds of reasonableness.

From the above it should be evident that culture and religion and workplace rules and policies are likely to be in conflict with each other at some point. In fact, how the courts and different parties decide to deal with such conflicts also has a cultural element to it. From the case law discussed above it is clear that South African courts are quite willing to advocate for reasonable accommodation to be provided to individuals and groups on the basis of cultural and/or religious grounds. Such accommodation will however be reconsidered where there is conflict between claimed cultural and religious rights and the law itself. In such instances, legal preference and public policy will be favoured. The question that remains open though, is how far South African courts and other dispute resolution forums are willing to go to accommodate and protect culture and religion within the workplace. In conclusion, it is perhaps worth mentioning that in South African labour law itself, a certain culture seems to exist. It seems to be a culture that South African labour dispute resolution forums highlight that employers should be more understanding, tolerant and empathetic towards issues of culture and religion in the workplace.

79 LeBaron & Pillay (2006) 1.



VOLUME 22 (2018)DOI:4 ISSN:2077-4907

The Use of E- procurement in South African Public Procurement Law: Challenges and ProspectsALLISON ANTHONY

Lecturer, Faculty of Law, University of the Western Cape

1 INTRODUCTION

In order for government to function, it needs goods and services. It may acquire these goods and services by using its own resources, or by contracting with outside bodies. The latter method is generally referred to as public or government procurement.1

Government procurement usually contributes a large deal to a country’s economy and is therefore of great importance. In 2002, government procurement was estimated to amount to 21.77 per cent of the gross domestic product (GDP).2 Section 217 of the Constitution sets the standard for government procurement in South Africa. Section 217(1) provides that organs of State in the national, provincial or local spheres of government or any other institutions identified in national legislation when contracting for goods or services must

1 Bolton P The law of government procurement in South Africa (Durban: LexisNexis 2007) 1.2 Audet D “Government Procurement: a synthesis report” (2002) 2 OECD Journal on Budgeting 1 at 180.

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do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective. Organs of State in terms of section 217(2) are not prevented from implementing procurement policies which provide for categories of preference in the allocation of contracts and the protection or advancement of persons, or categories of persons, (previously) disadvantaged by unfair discrimination. Section 217(3) in turn provides that national legislation must prescribe a framework in terms of which section 217(2) must be implemented.

Electronic procurement, better known as e-procurement, has been employed in various countries for a number of years. It has been implemented in different ways, each with its distinct advantages.3 Generally, competitive bidding is the primary procedure used for the acquisition of goods and services by government due to its competitive nature which is believed to yield the best value for money. It would appear that the electronic version of competitive bidding is the electronic reverse auction procedure. The United Nations Commission for International Trade Law’s (UNCITRAL) Model Law on Public Procurement of Goods, Construction and Services (UNCITRAL Model Law) makes reference to e-procurement in the form of electronic reverse auctions. The UNCITRAL Model Law defines electronic reverse auctions in Article 2 as “an online real-time purchasing technique utilized by the procuring entity to select the successful submission, which involves the presentation by suppliers or contractors of successfully lowered bids during a scheduled period of time and the automatic evaluation of bids”. It therefore entails active involvement of bidders during the bidding and award process.

E-procurement has not been widely used in Africa in general. The World Bank has reported that the three main reasons for the slow adoption of e-procurement in Africa have been: firstly, that African governments have been slow in putting in place the necessary capacity required; secondly the lack of information technology infrastructure as well as lack of mass internet access; and lastly, antiquated administrative cultures which exist in African governments.4

This article will look at what e-procurement is, whether the current legislative framework in South Africa provides for it, its advantages and challenges, and current developments. Reference will be made to e-procurement as regulated by international instruments, specifically the UNICITRAL Model Law, as there is currently no African model with which to compare or measure South Africa’s possible experience.

3 Soudry O “Promoting economy: electronic reverse auctions under the EC Directives on Public Procurement” (2004) 4(3) Journal of Public Procurement 340 at 345-348.4 Thomas A, Abdoulaye K, Frannie L & Sithabile M “Trends in public procurement in Africa: opportunities and challenges of capacity building interventions” (2007). http://siteresources.worldbank.org/INFORMATIONANDCOMMUNICATIONANDTECHNOLOGIES/Resourc es/eGP-in-Africa.pdf (accessed 2 April 2016).


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2 LEGISLATIVE FRAMEWORK FOR PUBLIC PROCUREMENT IN SOUTH AFRICA

The legislation applicable to procurement in general includes the Preferential Procurement Policy Framework Act (PPPFA)5 and its Regulations6 which regulate preferential procurement by providing a framework in terms of which preferential procurement policies must be implemented. At national and provincial government levels, the Public Finance Management Act (PFMA)7 and its Regulations8 do not regulate public procurement directly, but rather public finance in general and therefore public sector procurement. At local government level, the Local Government: Municipal Finance Management Act (MFMA)9 with its Regulations10 and the Local Government: Municipal Systems Act,11 manage public finance and thus public sector procurement. Since public procurement is of an administrative law nature, the Promotion of Administrative Justice Act (PAJA)12is applicable as well as the Promotion of Access to Information Act (PAIA)13 which regulates access to information held by both private and public bodies. Furthermore, for the purpose of preferential procurement in government contracts, the Broad-Based Black Economic Empowerment Act (BBBEEA)14

finds application, as well as the Prevention and Combating of Corrupt Activities Act 15 in curbing corruption in public procurement. Lastly and especially in the case of electronic government services, the Electronic Communications and Transactions Act (ECTA)16

applies.

3 E-PROCUREMENT MODELS

South African legislation permits various forms of procurement. It regulates the use of oral quotations, written quotations and single-source procurement. These methods are fairly simple as they require a request for a proposal from three possible suppliers, after which the best offer is chosen. In an electronic form this means of procurement can simply be transferred into an electronic format, thereby reducing the carbon footprint of both government and private suppliers. However, when it comes to a competitive bidding process, a conversion to e-procurement is more complex and challenging. A

5 Act 5 of 2000.6 GG 34350 of 08-06-2011.7 Act 1 of 1999.8 PFMA Public-Private Partnership Treasury Regulation 16 GN R1737 in GG 25773 of 28-11-2003; PFMA Supply Chain Management Treasury Regulation 16A GN R225 in GG 27388 of 15-03-2005.9 Act 56 of 2003.10 MFMA Municipal Supply Chain Management Regulations GN R868 in GG 27636 of 30-05-2005.11 Act 32 of 2000.12 Act 3 of 2000.13 Act 2 of 2000.14 Act 53 of 2003.15 Act 12 of 2004.16 Act 25 of 2002.

E-PROCUREMENT IN SOUTH AFRICAN PUBLIC PROCUREMENT LAW

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traditional means of bidding, called the English Auction,17 takes place when bidders congregate at a determined location and call out their bids so that each bidder is aware of the offer made by others. A bidder may bid several times as reserve prices are continuously increased until only one bidder remains and no other bidders increase their bids. The remaining bidder is then declared the winner who may claim the item at the price he last bid. Electronic reverse auctions operate in the same manner, except that the value of the bids are revealed electronically and the prices of bids decrease instead of increase. A mathematical formula is used to examine bids and award points for various aspects of the bids.

The UNCITRAL Model Law requires that the procuring entity electronically publish an invitation to tender. The invitation must reflect a detailed description of the subject matter of the procurement, the terms and conditions of the contract, and the criteria and procedure for examination of the bids including the mathematical formula to be used. The invitation must further inform bidders whether any component other than price, such as, quality or preference, will be evaluated.

4 ADVANTAGES AND DISADVANTAGES OF E-PROCUREMENT

4.1 Advantages

It has been noted that implementing e-procurement is potentially beneficial in ensuring a lower price for the goods procured and a more efficient public procurement process which results in reduced costs and time periods.18 It can further promote transparency in the requirement that bidders are actively involved in a “real-time” procurement process. They are therefore continuously informed of their competitors’ bids and what their prospects of success are. The latter may even contribute to reducing corruption within the process which at present (4 April 2016) is a great concern in South Africa. The use of e-procurement may also reduce administration costs and19 procurement staff, and improve communication through speedier access to information.20 This means that tender documents and information will always be available and can be updated regularly and speedily. Government will further be able to identify who its regular suppliers are and inform the public thereof. This promotes transparency and value for money in contracting with reliable suppliers. However, competition must still be maintained in utilising the services and products of various suppliers. The main benefit

17 Other types of auctions noted by Soudry (2004) at 345 are the first-price sealed-bid auction, second- price sealed-bid auction and the Dutch auction. However, the English auction discussed in this article is according to Soudry the traditional means of bidding. It is also the electronic version of the normal competitive bidding in South Africa and is therefore the focus of this article.18 De la Harpe S “The use of electronic reverse auctions in public procurement in South Africa” (2012) 26(1) Speculum Juris 21 at 25-26.19 See Jooste MV “A framework for the implementation of e-procurement” (2003) 14(2) SA Journal of Industrial Engineering 1 at 5 for an explanation on how procurement costs may be curbed by making use of e-procurement.20 Eadie R, Perera S, Heaney G & Carlisle J “Drivers and barriers to public sector e-procurement within Northern Ireland’s construction industry” (2007) 12 ITcon 103 at 109.


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of introducing e-procurement recorded by the World Bank21 has been improvement in transparency and competition which are elements found in section 217 of the Constitution.

In order to maximise the benefits of e-procurement, it has been noted that in- depth training of all stakeholders will need to take place.22 Furthermore, suppliers will have to adopt an “electronic attitude” toward procurement in the sense that all enquiries, participation and complaints will have to be done electronically. All information relating to current tender processes will have to be transitioned or converted into an electronic format in order to maintain an electronic procurement system. More importantly, top management support will be of vital importance in establishing and maintaining an e-procurement system by not only ensuring that the necessary infrastructure is provided but also by providing the necessary support to staff undergoing the transition.

4.2 Disadvantages

With e-procurement being a relatively new form of procuring goods and services, it has a number of barriers. Due to the fact that bids are evaluated based on mathematical formulae, e-procurement may be possible only when procuring contracts of a relatively small value and where it is possible to evaluate aspects of bids by means of mathematical formulae. There is the inherent danger that secondary aspects, such as, quality and socio-economic considerations, may be given insufficient attention.23

Products may therefore be procured at a lower quality for the sake of a better price. It is submitted that this may pose a number of challenges in a country such as South Africa. The use of a predetermined mathematical formula may be problematic: first due to political considerations as regards who (in terms of which State department and a person’s qualifications) will be responsible for creating the formula; and secondly, whether the same formula can be applied to all government contracts in all spheres of government. South Africa consists of nine provinces, each with its own specific capacities and needs. It is also well-known that South Africa still suffers from the consequences of discriminatory policies during the Apartheid era, and for which provision has been made in section 217(2) of the Constitution which states that categories of preference may be provided for in the allocation of government contracts. Based on this, the need to focus on preferential procurement and the development of small, medium and micro-enterprises (SMMEs) may be more important in some parts of

21 World Bank e-procurement reference guide http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTINFORMATIONANDCOMMUNICATIONAND TECHNOLOGIES/0,,contentMDK:23154434~pagePK:210058~piPK:210062~theSitePK:282823,00.html (accessed 2 April 2016). More specifically, benefits from the use of e-procurement in the selection of consultants or rather professional services in South Africa, are increased transparency in the procurement process, a simplified selection process by providing online guidance throughout the process, “automated” compliance with procurement guidelines, and improved quality of institutional memory. See Leipold K, Klemow J, Holloway F, & Vaidya K “The World Bank e-procurement for the selection of consultants: challenges and lessons learned” (2004) 4(3) Journal of Public Procurement 319 at 327.22 See Leipold, Klemow, Holloway & Vaidya (2004) at 330.23 De la Harpe S Procurement law: a comparative analysis (Unpublished PhD thesis, University of South Africa, 2009).


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the country than in others. Therefore, this begs the question whether it will be possible to apply the same mathematical formula to all types of procurement in all spheres of government.

A further possible threat in an e-procurement process is that it may in fact increase collusion where there are only a small number of contractors who can provide the desired product or service. The possibility of an IT failure during the procurement process is a further reality which may lead to legal disputes regarding liability for a failed process or a tender incorrectly awarded. It has also been noted that technical expertise, knowledge and access to information technology may be limited in some companies, especially in the case of SMMEs. Furthermore, the lack of legal certainty underpinning e-procurement may be a further barrier to the successful implementation of e-procurement.24 As noted by Jooste,25 troublesome business relationships further influence the speed at which e-procurement has been adapted in South Africa by management failing to provide adequate infrastructure and support to staff and e- procurement staff, in turn, lacking a willingness to transition to an electronic environment.

5 E-PROCUREMENT IN SOUTH AFRICA

The legislation which regulates public procurement in South Africa does not make specific reference to e-procurement. However, the ECTA states in its long title that it is intended to provide for electronic transactions, to provide electronic access to electronic communications and transactions by SMMEs, to provide for human resource development in electronic transactions, and, most importantly, to encourage the use of e-government services in sections 27 and 28 of the Act. It is a goal of the Act to promote the use of e-government services and electronic transactions between private and public bodies. Moreover, the ECTA attributes a wide definition to “e-government services” in section 1 as “any public service provided by electronic means by any public body in the Republic”. The process of e-procurement can therefore fall squarely within this definition so as to enjoy the regulation and protection of the ECTA.

The public procurement process generally entails the advertisement of a tender, receipt of expressions of interest or tender offers, evaluation of tenders, award of the tender, and management of the contract. The ECTA in section 5(3)(e) provides that the Minister of Communications may in developing a national e-strategy, “conduct research into and keep abreast of developments relevant to electronic communications and transactions in the Republic and internationally”. This section therefore empowers the Minister to research the possibility of implementing e-procurement in South Africa as a starting point. Section 6(a) of the ECTA further provides that the e-strategy must indicate programmes to provide internet access to disadvantages communities. Together with this and in line with the disadvantage highlighted above, section 9 of the ECTA places an obligation on the Minister to investigate the programmes and

24 Eadie, Perera, Heaney & Carlisle (2007) at 110.25 Jooste (2003) 11 – 12.


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infrastructure which allow SMMEs access to internet connectivity in order to utilise electronic transactions. Pursuant to this, the Minister may establish electronic and communication centres for SMMEs,26 facilitate the development of website portals to enable SMMEs to transact electronically and provide the necessary assistance in managing their electronic transactions. The Act therefore enjoins the Minister to provide access to e-procurement for SMMEs.

The ECTA provides in section 24(a) that an “expression of intent or other statement”, which it is submitted, may constitute an expression of interest or tender offer, has legal force and effect if sent in a data message.27 Important to note is that section 20 of the ECTA provides for automated transactions and the management thereof. Obvious as it may seem, it is important that the Act does in fact allow for transactions to take place electronically and states that “an agreement may be formed where an electronic agent performs an action required by law for agreement formation”.28 The Act therefore appears to permit the electronic conclusion of contracts, and therefore electronic tenders. Similarly, section 22(2) provides that “[a]n agreement concluded between parties by means of data messages is concluded at the time when and place where the acceptance of the offer was received by the offeror”, thereby providing for the time at which the tender becomes valid and binding, which may be important in the event of the tender being contested in a court of law. From this it is apparent that the ECTA contains provisions which allow for the entire public procurement process to take place electronically – from the stage of advertisement of a tender, to the receipt of an expression of interest or tender offer, to the evaluation and award of a tender. It would therefore appear that there is in fact room for the legal regulation of e-procurement in South African legislation. However, although this may be the case, in order to avoid legal uncertainty and therefore possible loopholes for dispute, as well as to provide a more nuanced piece of legislation which provides for the specific needs of an e-procurement system, it is imperative that specific legislation be enacted for the regulation of e-procurement in South Africa.

As previously indicated, section 217 of the Constitution requires that government when contracting for goods and services should do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective. Fairness in this context refers to equal access to the process and procedurally fair evaluation of bids. By advertising contracts electronically on a website available or accessible to all potential bidders, the e-procurement process will ensure equal access to contract opportunities. The evaluation of bids by means of a mathematical formula excludes human interference, thereby ensuring that bidders are evaluated procedurally fairly and contributing to reducing corruption.

26 Section 9(a).27 “Data message” is defined in section 1 of the Act as “data generated, sent, received or stored by electronic means and includes- a) voice, where the voice is used in an automated transaction, and b) a stored record”.28 Section 20(b).


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Equality in the South African public procurement context refers to substantive equality. This means that contractors are evaluated against the backdrop of section 9 of the Constitution. In order to give effect to this section and the equality element in section217 of the Constitution, contractors’ socio-economic circumstances are considered when evaluating their bids. Contractors may therefore be treated differently in view of South Africa’s past discriminatory practices.29 In order to give full effect to this principle, a formula will need to be devised in terms of which it will be possible to evaluate tenders for equity purposes, especially when e-procurement is eventually used in the case of large-value tenders.

Throughout the tender process, bidders will be aware of the competing bids and the contents thereof. However, the identity of bidders should not be revealed in order to maintain the integrity of the process and prevent collusion. All information necessary to participate in the process, the evaluation criteria and information regarding the outcome of the process and the reasons therefore must be made available to all bidders. The principle of transparency will therefore be complied with. The UNCITRAL Model Law provides in Article 54(1)(j) that a minimum number of bidders should be indicated in the invitation to tender so as to ensure effective competition. This provision therefore ensures that the competition principle will be complied with as mandated by section 217 of the Constitution.

E-procurement will go a long way to reducing administrative costs, and significantly decrease the quantity of paper involved in a procurement process. It is designed to be faster than a paper-based tender process, thereby aiming to achieve best value for money. E-procurement will therefore promote cost-effectiveness in compliance with section 217 of the Constitution.

6 CURRENT DEVELOPMENTS

In an attempt to curb the scourge of corruption in public procurement, National Treasury has established an e-tender publication portal and central supplier database on which all tenders in all spheres of government will be published.30 All tender documents and information pertaining to the advertised tenders will be made available on the central portal. The entire initiative and the administration of the portal will be managed by the Office of the Chief Procurement Officer. The intention is to reduce legislative fragmentation, improve transparency and accountability with regard to the award of government tenders, and in the process curb corruption and reduce costs.

The benefits of the e-tender portal have been noted as: a central point of entry to view, search and identify government tender opportunities; the improvement of competition in the tender process by making it easier to identify and access tender information and documents; and an increase in transparency with regard to tender awards published on the portal. It is considered to be a first step to digitise interaction between South African business and government and possibly foreign contract

29 Bolton (2007) at 49 -51.30 See www.etenders.gov.za.


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opportunities; is meant to reduce and eventually eliminate duplication of costs and administrative logistics; it will provide a free service to State departments, businesses and the public in accessing tender information and opportunities.31

6 CONCLUSION

Regulating e-procurement by means of legislation will go a long way in not only ensuring legal certainty, but also ensuring that transparency and competition are promoted. E-procurement will further ensure that a cost-effective process is followed and that best value for money is therefore achieved. It is important that the legislation enacted to regulate e-procurement gives effect to section 217 of the Constitution. On a cursory analysis, the UNCITRAL Model Law regulations on e-procurement comply with an e-procurement system which is fair, transparent, competitive and cost-effective. South Africa will thus benefit from a system similar to that in the UNCITRAL Model Law. The implementation by National Treasury of an e-tender portal is to be commended and is a positive step towards digitising and eventually internationalising South Africa’s commercial capabilities. The element of equity, being unique to South Africa, can be given effect to by providing greater access to SMMEs as mandated by the ECTA. The relevant training in information technology, institutional support within corporate bodies, and innovative methods to convert equity aspects in bids to mathematical formulae will ensure that the element is complied with. It is submitted that the use of e- procurement holds many benefits for the South African economy. It will assist in increasing South Africa’s contribution to environmental considerations and sustainable development. Furthermore, an inevitable decrease in human intervention in the e- procurement process will curb corruption and ensure that bidders are treated fairly. Although barriers to successful implementation of e-procurement exist, South Africa can benefit from the advantages offered by an e-procurement system. However, until a viable solution is provided for the challenge posed by a non-discriminatory mathematical formula, e-procurement should be utilised only for smaller-value government contracts.

31 See http://www.gov.za/sites/www.gov.za/files/speech_docs/Annexure1%20eTender%20%282%29.pdf (accessed 2 April 2016).



VOLUME 22 (2018)DOI:5 ISSN:2077-4907

Time for the Tide to Change for Rules of Engagement in Labour Law: A Proposal for Effective Wage Dispute Resolution

PAUL NKOANE

Lecturer, Department of Criminal and Procedural Law, College of Law (Unisa)

1 INTRODUCTION

A recent plethora of in instances of labour unrests and in particular lengthy wage strikes indicate that South African labour law is in need of reform.1 All the more so, if dispute settlement between

This article was initially drafted when I was working as an assistant at Unisa in 2013. I am grateful to Prof ME Manamela for his valuable comments on an earlier draft. However, I am responsible for the final draft and all errors are mine alone.1 Department of Labour ‘Industrial Action Report’ (2008) available at http://www.labour.gov.za/DOL/downloads/doc uments/annual-reports/industrial-action- annual report/2008/industrialaction08_chpt3.pdf (accessed 29 Nov 2013). Also see Patel S ‘Employment under pressure – inclusive strategies in everybody’s interest’ (2011) available at http://transformationaudit.org/blog/wp content/uploads/2012/02/Chapter-2.pdf (accessed 26 November 2013).

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trade unions and employers is prolonged resulting in workers suffering financial loss. In some instances, trade unions use the bargaining process as grist to the mill of their own agendas,2 and this culminates in employees and employers absorbing the full impact of the prolonged strikes. Some of these prolonged strikes not only have an adverse financial effect on the employees’ income but also have a negative impact on certain sectors of the economy. Unemployment3 and to a relative extent loss of income, for both employers and employees, are a major concern in South Africa. It is for these reasons that the law ought to try another tack, and that labour policy has to change under the pressure of necessity. Accordingly, the thesis of this article is motivated by recent improprieties in industrial actions.4 In truth, any system of law needs to serve its purpose efficiently, otherwise it should be reformed.5 A developing economy should as far as necessary evade needless strikes, in that such strikes have a negative impact on both employment and economic growth.6 The effect of the unreasonable demands (wages) on employment in general cannot be undervalued. In most cases costly demands may lead the employer to resort to retrenchment of workers, possibly for operational reasons.7 Therefore, for the protection of workers employment, wage increments must be reasonable and affordable.

It will be illustrated that a system ought to be formulated not only to increase efficiency in the bargaining process, but also to abate needless strikes and the resultant adverse effect on the economy. This article, therefore, is focussed on sectors that have a significant impact on the economy if production were to cease,8 and with those that

2 Ngamlana C ‘Woes of the Tripartite Alliance’ (2012) available at http://www.afesis.org.za/index.php/local-governance/93-local-governance-articles/831-woes-of-the- tripartite-alliance (date of use 20 June 2013).3 See Maswanganyi N ‘SA unemployment rate rises in first quarter’ (2013) http://www.bdlive.co.za/economy/2013/05/06/sa-unemployment-rate-rises-in-first-quarter (accessed 29 November 2013).4 The term industrial action means a strike or other disruptive action used in an industrial dispute.5 These sentiments were echoed by the then Mining Minister Ngoako Ramatlhodi, who stated: ‘the lengthy platinum strike could have been settled much sooner if the CCMA and Nedlac had done their jobs. The strike took so long to resolve partly because our institutions like Nedlac and the CCMA need to work. Well, I’m not the minister of labour. But obviously in the light of what happened, I think all our institutions should be strengthened. But it doesn’t help to strengthen the CCMA when the whole regime stays the same. The entire labour relations regime has to be revisited.’ Barron C ‘CCMA and Nedlac to Blame: Ramatlhodi’ Sunday Times: Business Times (29 Jun 2014) at 1.6Exporters and importers of agricultural produce and seafood, referring to the Transnet strike, indicated that South Africa cannot afford another strike of this nature at ports as such strikes have a direct impact on the South African trade balance and the economy as a whole. Therefore, all the parties involved in facilitating exportation should quickly resolve their disputes; Economic Research Division ‘Estimated impact of the Transnet strike action on traders of agricultural products and seafood’ (2010) available at http://www.nda.agric.za/docs/economic_analysis/estimated_impact.pdf (accessed 20 June 2013) at10.7 SACWU v Afrox Ltd (1998) 19 ILJ 62 (LC).8 Sectors like Transnet, the banking sector, and the energy sector, especially the oil sector which is concerned with crude oil refinement and the supply of petrol and diesel. This list is, however, not exhaustive. The Department of Trade and Industry may provide categories under which sectors may fall for the purpose of determining which of those sectors should be regulated.


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offer essential services.9 The establishment of an efficient dispute resolution process in these sectors will secure the protection of the rights of those who are not part of the dispute.10 A further aim is to establish a process that values and advances the needs of employees and enhances what the employer is capable of offering. Instead of the settlements being centred on what employees and employers think to be a reasonable11

demand or offer, a shift has to necessitate the prioritisation of both parties’ financial standing. In this sort of system the aim is entirely to strike a reasonable balance in the bargaining process for both parties concerned. Economically the employer should be able to meet the demands without having to risk insolvency or resort to the retrenchment of employees to offset increasing costs. Socially employees must also be able to live on the salary they receive. This sort of balancing is basic if the process of collective bargaining is to prove effective and efficient. Employers cannot pay employees small wages while concurrently profiting enormously from the undertaking. Fairness and parity12 should be the basis for the wage settlements.

2 THE PURPOSE OF STRIKES AND THE RIGHT TO STRIKE IN A NUTSHELL

In past years many legal systems, South African law included, regarded industrial actions as a form of criminal offence.13 Grogan asserts that the odds were stacked against employees as the employer could pressurise employees to accede to just about any offer or face a lawsuit for damages caused by their strike action. 14 Employees had no effective weapons at their disposal to mount a defence if the employer was reluctant to heed their demands.15 In such situations, the threat by employees to withdraw their labour was an empty one if the employer could simply dismiss the strikers and replace them with more compliant workers.16 While the threat to strike remained an empty threat the balance of power at the bargaining table was tilted so much in favour of the employer that collective bargaining was regarded as nothing more than collective begging.17

9 ‘Essential service’ means – (a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population; (b) the Parliamentary service; (c) the South African Police Services; see s 213 of the Labour Relations Act 66 of 1995 (LRA).10 See fn 71 below.11 The connotation reasonable in this instance implies a subjective state of mind. This proposal aims to provide an efficient bargaining system where matters have to be viewed objectively. That implies that all factors have to be considered when assessing what is reasonable and what is not. The factors that have to be considered are the financial standing of the employer, the inflation rate, the workers’ demands, and any matters that might prove useful with regard to the settlement.12 The word parity is not intended to imply that the employer and the employee should share the profits of an undertaking equally, but is intended to mean that the remuneration should be fair when weighed against the profits an undertaking generates.13 Grogan J Collective labour law 2 ed (Cape Town: Juta 2014) at 191.14 Grogan (2014) at 191.15 Grogan (2014) at 191.16 Grogan (2014) at 191.17 Grogan (2014) at 191.

WAGE DISPUTE RESOLUTION IN SOUTH AFRICA

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The progression from the criminalisation of strikes to the provision of the right to strike in the Constitution of the Republic of South Africa 1996 (Constitution) was gradually realized.18 In recent years, parties to collective bargaining have the liberty to settle disputes of interest away from the courts.19 Accordingly the parties are free to determine their own battlefield rules and strategy.

While bargaining can be seen as more or less similar to warfare, it is injudicious to push the analogy between warfare and strike action too far.20 To equate strike action with warfare may lead to misconceptions, not the least of which is to regard strikes as a justification to draw other weapons to intimidate and induce surrender.21 The notion of comparing strikes to total warfare has recently caused much tumult. Strikes are intended to serve a specific purpose and thus any action taken in pursuit of fulfilling that purpose has to be within legal confines. There should be no deviation from this even when efforts are made to compel the employer to change its mind. Consequently, a strike has to fall within the ambit of the pertinent laws. Section 213 of the LRA defines strike as:

‘the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee’.

A Court has described the purpose of a strike as follows:

‘Strikes, by their nature, are intended to cause the employer economic harm. By withholding their labour, the employees hope to bring production to a halt, causing him to lose business and to sustain overhead expenses without the prospect of income, in the expectation, that should the losses be sufficiently substantial, the employer will accede to their demands.’22

It is quite clear that strikes serve as a means to an end where an impasse in negotiation is hard to break.23 Thus, strikes serve as a tool to pressure the employer to consider the employees’ demands.24 Owing to the usefulness of strikes as an instrument for employees to break impasses, their importance is buttressed by the Constitution and labour legislation.25 The Constitution26 comprises fundamental rights which must be

18 See Myburg JF “100 years of strike law” 2004 25 ILJ 962: the author here canvasses the issue of the right to strike from the primitive years, to the current years where a distinction can be drawn between protected strikes and unprotected strikes and the consequences of such strikes.19 Afrox Ltd v SACWU (1997) 18 ILJ 406 (LC) at 410E.20 Grogan (2014) at 191.21 Grogan (2014) at 191.22 VNR Steel (Pty) Ltd v NUMSA 1995 ILJ 1483 (LAC).23 See CWIU v Plascon Decorative Inland (Pty) Ltd [1998] 12 BLLR 1191 (LAC).24 The history of the right to strike and different levels of collective bargaining are provided elsewhere; see generally Steenkamp A, Stelzner S & Badernhorst N ‘The right to bargain collectively’ (2004) 25 ILJ 943-961.25 Section 64 of the LRA and s 23(2)(c) of the Constitution.26 Section 2 of the Constitution, states that the Constitution is above all other laws, thus every law contained in it overrides any other law.


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promoted, protected, and respected.27 One of the rights rooted in the Constitution is the right to strike.28 Not only is this right a constitutional right but it is also echoed in the LRA.29

The right to strike is not absolute and has to be weighed against other rights. The Constitution provides that every right is subject to the limitation clause.30 The LRA limits the right to strike in certain respect/s. The LRA also provides conditions that need to be met in order for a strike to be protected.31 The right to strike should be limited in the interest of employees, employers and the public. The LRA also affords employees mechanisms to give impetus to their strike, such as the right to picket for the purpose of demonstrating in support of a strike.32

There are numerous factors that may induce employees to strike. Within any industrial relations regime there will commonly exist displeasure ranging from generalized discontent, through dissatisfaction with procedures, and on to focused problems, such as earnings.33 However, the major factor in South Africa seems to be that the socio-economic needs of a large number of citizens remain unsatisfied notwithstanding political change.34 Thus, the need to increase financial income seem/s to be the main catalyst for strikes.35 Similarly, inequality, poverty, and unemployment in South Africa afford the social and economic need to escalate the belief in wage increases. In the context of inequality, poverty, and unemployment, the noticeable exhibition of tactless utterance/s by union and political leadership fuels the fire of greater expectation of rewards for lower and middle class workers.36 In a sense the majority of the population are led to believe that economic empowerment cannot be attained without a tussle: thus economic evolution can only be realized through effective combat. Economic suppression, poverty and anger are the main generators of strikes and perhaps the blatant display of violence. These factors appear to fuel strikes and may possibly justify the aura of bellicosity, but should never be the initiator of the subsequent violence.

27 See s 7 of the Constitution.28 Section 23(2)(c) of the Constitution.29 Section 64 of the LRA 66 of 1995. See also Maserumule P ‘A perspective on developments in strike law’ (2001) 22 ILJ 45-51, where the author discusses the role of the LRA, the Constitution and the courts’ involvement with regard to the right to strike, its limits and enforcement. The author is of the view that the courts are not doing enough to foster the right to strike.30 See ss 23 & 36 of the Constitution.31 Sections 64 & 65 of the LRA.32 Section 69 of the LRA.33 Kelly JE & Nicholson N “The causation of strikes: A review of theoretical approaches and potential contribution of social psychology” (1980) 33 Human Relations 853 at 872.34 Bendix S Industrial Relations in South Africa (Cape Town: Juta 2010) at 653-4; Visser W ‘A racially divided class: Strikes in South Africa 1973- 2004’ in van der Velden S et al (eds) Strikes Around the World, 1968-2005 (Amsterdam: Aksant Academic Publishers 2007) at 40-60.35 Murwirapachena G “Exploring the incidents of strikes in post - Apartheid South Africa” (2014) 13International Business & Economics Research Journal 553 at 554-5.36 Murwirapachena (2014) at 556.


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The right to strike and the interest to realize a social or economic goal as clarified are not without boundaries, as other persons’ rights have to be respected when strikers embark on industrial action. This article asserts that the commission of violence37

during strikes is not in accord with the law. The ill acts committed during strikes are not only against the principles of the LRA38 but also against the ethos of the Constitution.39

Thus, the need to enforce rules that govern employer and employee engagements40 in wage disputes should not be understated, the more so if the law is to lend credence to the Constitution and the underlying laws.

3 COLLECTIVE BARGAINING IN WAGE NEGOTIATION

Collective bargaining involves the right of freedom of association and protection of the right to organize.41 The International Labour Organization (ILO) states that ‘workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization’.42 Although the right to organize and bargain collectively is recognized through international conventions, the rule of law of the land should not be flouted when parties exercise their labour rights. Thus, when exercising the rights founded on the ILO Convention, workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land.43 Any, rule whether it is intended to promote workers’ rights, increase economic growth or protect the public must be respected. Collective labour law, equally, directly affects the balance of power between political, social and economic forces, in what are often very different cultural and historical contexts, such that frequently strong resistance emerges to changing the established order.44 The balancing does also allow people to engage in activities that may have the impact of advancing their economic and social lives. The socio-economic forces generally direct our predilection to economic or political orientation, and the groups we are likely to associate with.

Thus, the kind of socio-economic philosophy one is probably to adopt would be dependent on which side of the fence one happens to be. The capitalists, on the one hand, will support the idea of maximum profits at any cost or at little cost, depending on which would prove more lucrative.45 The equalists (for lack of a better word), on the other hand, will advocate the sharing of profits, ignoring the risk incurred by

37 Incidents like damage to the private property of persons who have very little to do with employees’ strike action have become all too common.38 Section 69(1) of the LRA.39 Section 17 of the Constitution.40 By ‘rules of engagement’ I mean the current rules that govern the manner in which interest based dispute/s are resolved.41 Grogan (2014) at 22-36.42 Article 2 of Freedom of Association and Protection of the Right to Organise Convention 1948 (No 87).43 Article 8 of Freedom of Association and Protection of the Right to Organise Convention 1948 (No 87).44 von Potobsky G ‘Freedom of association: the impact of Convention No. 87 and ILO action’ (1998) 137Int’l Labour Rev 195 at 196.45 Cowan R & Rizzo MJ (eds) Profits & morality (Chicago: University of Chicago Press 1995).


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management, investors and owners in starting an enterprise. From both sides, one thing is clear, namely, that everyone wants to earn more (this obviously excludes the communists’46 theory of wealth). This shows that the aim of the parties concerned is to earn more. This is the reality in wage negotiations and is fairly reflected in the trade unions’ goal of representing the majority of workers.47 As a consequence of earning more, it has become profitable for trade unions to represent the majority of the workers in wage negotiations.48

Given this state of affairs, competition has become rife among competing trade unions to be the best union.49 By virtue of this, some unions have in the past steered negotiations in an unreasonable manner so as to appease their members.50 In some cases one trade union seemed to thrust its political agenda to the fore to show its tripartite alliance partners that, if need be, it has the muscle to impose its philosophy.51

One such occasion involved a State-owned company.52 The State-owned freight logistics group Transnet made a last-ditch effort to reach an agreement with its trade unions to avert the planned industrial actions that could paralyse the country’s railways, ports and pipelines.53 The South African Transport and Allied Workers Union (SATAWU) and the United Transport and Allied Trade Union (UTATU) had indicated that strike action

46Communism (from Latin communis – common, universal) is a socialist movement with the aim of creating a classless, moneyless, and stateless social system structured upon common ownership of the means of production, as well as a social, political and economic ideology that aims at the establishment of this social order; see Engels F Principals of communism (Germany: Eduard Bernstein1847) and Bukharin N & Preobrazhensky EA The ABC of Communism (London: Penguin Books 1969).47 The Marikana tragedy provides support for this statement. See also fn 49 below.48 Dhliwayo R ‘The rise or fall of trade unions in South Africa: the Marikana incident’ (2012) available at http://www.polity.org.za/article/the-rise-or-fall-of-trade-unions-in-south-africa-the-marikana-incident- 2012-10-11, [accessed 20 June 2013].49 ‘[R]ivalry between the AMCU and the NUM is widely blamed for feeding the violence. The AMCU, which has expanded rapidly this year at the expense of NUM, is seen as the more militant union and has been linked to aggressive tactics to win wage increases. It has gained ground in an environment where workers have been dissatisfied with improvements in quality of life since the end of apartheid, particularly for those in the lower wage brackets’; see Chapple I & Barnett E ‘What’s behind the South African mine violence?’ (2012) available at http://edition.cnn.com/2012/08/17/world/africa/marikana-south-africa- mine-shootings/; (accessed 30 September 2013). See also Sosibo K ‘Union wars complicate Northam strike deal’ (2013) available at http://mg.co.za/article/2013-11-29-union-wars-complicate-northam- strike-deal (accessed 29 November 2013). The moral of the story is that trade unions seem to do whatever is necessary to benefit their course. This includes persisting with demands that are unrealistic and not being honest with their members and employers. At time the unions actions includes the demands of rights and recognition which by law they are not entitled to, see Railway Africa ‘Court Stops Transnet strike’ (2013) available at http://www.railwaysafrica.com/blog/2013/10/court-stops-transnet-strike/ (accessed 26 November 2013).50 See fn 49 above.51 See Ngamlana (accessed 20 June 2013).52Transnet said it was concerned about Satawu’s leadership, since the union misrepresented its offer to workers. ‘The key focus of the new offer was, at the request of the Satawu-elected leadership, a focus on increasing the pensionable earnings of employees and if necessary reducing the non-pensionable elements, such as allowances’. See ‘Transnet labour unions to march to Parliament’ (2010) available at http://www.skillsportal.co.za/page/human-resource/industrial-relations/512329-Transnet-labour- unions-to-march-to-Parliament (accessed 20 June 2013).53Prinsloo L ‘Transnet raises affordability concerns as unions gear up for strike’ (2010) available at http://www.engineeringnews.co.za/article/transnet-raises-affordability- concerns-as-unions-gear-up- for-strike-2010-05-06 (accessed 19 November 2012).


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was in the offing.54 The unions seem to be willing to do whatever was possible to assert the workers’ demands. This is marked by the unions’ march to Parliament to petition for a wage increase.55 In some instances there are striking power plays which hold very little direct benefit for the workers.56 Even when a realistic offer is made by the employer, the unions appear to lack influence or are unable to sway the workers to return to work. This is often attended by the obvious loss of income, owing to the policy of no work no pay.

Strikes create financial traps and economic agony for employees. The pressure to strike may generate the pleasure of wage increment/s and equally the discomfort of the ensuing losses. The loss of income during strikes places a heavy burden on the already destitute employees and their families. But the heaviest loss is the loss of employment. Hence, every time workers strike, they risk striking themselves out of jobs. While in most cases employment is affected directly by strikes, there are also secondary consequences of strikes on employment that stem from shutdowns of firms, trade deficits, and low investment, among others.57 Similarly violence during strikes carries social, economic and political consequences. Violence during strike/s may lead to the death or severe injury of breadwinners, trapping their families in poverty. This translates into government’s and society’s responsibility of fiscally assisting the injured workers, retrenched people, and bereaved families, especially through payments for the disabled, unemployment benefits, and social grants, respectively.58

The financial effects of a strike are at times felt far beyond the parties concerned. For example, the effect of a strike by Transnet employees will be felt by other industries as well.59 The three-week strike action by Transnet employees cost the country millions of Rands as it curtailed exports of metals, cars, fruit, wine and other products to various destinations across the world, as well as imports of vehicle parts, fuel supplies and other products from across the world.60 Supply chains were severely disrupted and in some cases export contracts were permanently lost.61 The agricultural sector is heavily dependent on Transnet for the shipment of products. Agriculture is one of those sectors that play a very significant role in the country’s economy and is particularly dependent

54 Prinsloo (2010).55‘Transnet labour unions to march to Parliament’ (2010).56Trade unions proposed strikes during the 2010 FIFA World Cup preparations to compel government to heed their demands, see Johwa W Cosatu ‘plans to protest against increase in electricity prices’ (2010) available at rom http://ccs.ukzn.ac.za/default.asp?3,28,11,3589 (accessed 05 January 2014).57 Murwirapachena (2014) at 558.58 Murwirapachena (2014) at 558.59 For example, the agricultural industry was adversely affected by the strike. The fruit industry was the worst hit, losing R150 million on the exportation of fruit, while the wine industry lost R0,69 million. The seafood industry incurred losses amounting to R5,56 million. Importers of prawns and salmon lost R250 000 during this time. The meat industry was also affected, with losses amounting to R5,4 million. In total, traders of agricultural products and seafood lost about R162 million because of the strike. See Economic Research Division ‘Estimated impact of the Transnet strike action on traders of agricultural products and seafood’ (2010) available at http://www.nda.agric.za/docs/economic_analysis/estimated_impact.pdf. (accessed 10 January 2013).60 Economic Research Division (2010) at 2.61 Economic Research Division (2010) at 2.


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on a reliable and flexible transportation system.62 As a result of the strike action, about 75 percent of the fruit exporters experienced losses totalling R40 million as they had to pay for storage at the harbours.63 Another R40 million was lost due to deterioration in the quality of the fruit. Some fruit exporters were placed in an awkward position when 100 containers of fruit that had been intended for exportation ended up being dumped, this resulted in losses of about R20 million.64 Other losses, amounting to R50 million, occurred because fruit-exporting institutions forfeited better returns owing to late arrivals at the market, the absence of empty containers at the port, congestion surcharges and resultant harvesting problems or inability to harvest.65 The exporters and importers of agricultural products and seafood emphasised that ports should preferably be partly or fully privatised.66 Importing and exporting institutions are of the opinion that ports should be declared strategic businesses for the country and also declared essential facilities offering essential services, and that employees in this sectors should not be allowed to strike.67

The strike modus operandi in its current format has triggered anarchy in the essential services,68 where the lives of many were put in jeopardy. In terms of the LRA, workers providing essential services have a very limited right to embark on industrial action, except where a collective agreement has been concluded designating an essential service as a minimum service/maintenance service.69 However, in the present set-up this rule seems to be ignored by unions and members alike.70 Strikes have forced some sectors of essential services to a standstill. For example, it has been reported that ‘thousands of people living with HIV/Aids were at risk of developing resistance to Aids drugs as a result of defaulting on treatment because of the public servants’ strike’.71

62 Economic Research Division (2010) at 2.63 Economic Research Division (2010) at 8.64 Economic Research Division (2010) at 8.65 Economic Research Division (2010) at 8.66 Economic Research Division (2010) at 10. It would be quite interesting to see whether privatisation could be a remedy for such strikes, but there is indeed doubt whether such a course would solve the problem. If one looks at strike action in the mining industry, which is privately owned, one discovers that privatisation is no guarantee that such strikes will not recur.67 See fn 69.68 An essential service is defined in s 213 of the LRA as: ‘(i) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population; (ii) the Parliamentary service; and the South African Police Service’.69 See s 65(1) of the LRA states ‘No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if- (d) that person is engaged in- (i) an essential service; or (ii) a maintenance service. Section 70(1) of the LRA states ‘any party to a dispute that is precluded from participating in a strike or a lock-out because that party is engaged in an essential service may refer the dispute in writing to (a) a council, if the parties to the dispute fall within the registered scope of that council; or (b) the Commission’.70 Pillay D ‘Essential Services: developing tools for minimum service agreements’ (2012) 33 ILJ 801.71 Ledwaba L ‘Strike hits at the heart of Aids epidemic’ City Press (5 September 2010) at 4. It is evident that workers in the essential services sector are not entitled to engage in strikes. Current rules of collective bargaining seem to be ineffective in guiding employer and employees to reach settlements in wage negotiation/s quickly. This modus operandi seems to have created avenues for disgruntle essential service workers to engage in unlawful strikes. This kind of situation calls for the rethinking of the collective bargaining rules in respect of interest based disputes.


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What is most problematic is that even established rules of law are at times ignored by unions and their members.72 As a result of the prolonged strike ‘many antiretroviral (ARV) clinics stopped functioning’.73 The shutdown meant that patients who ran out of ARV drugs could not get more. The process of getting new patients onto the government’s ARV programme was also dealt a blow. Even if people had the money to buy the drugs over the counter they were unable to do so because they needed a prescription from a doctor and doctors were on strike.74 Such a situation creates a conflict between constitutional rights in that the Constitution provides for a right to strike, but also provides for a right to life. In S v Makwanyane75 the Court stated that the right to life is valued above all other rights, hence, reform is required to inhibit such life- threatening illegal strikes from recurring at the peril of innocent bystanders.

Measures are commonly adopted to limit the adverse effects of strikes on the public, employees and employer, but these measures appears to be unsuccessful. The court orders that were issued to pressure essential service workers to return to work, in the abovementioned illegal strike, seemed to have no effect. During the public servants strike the government had to offer an olive branch to essential service workers who had defied court orders to return to work, as part of a sweetened deal to get strikers to end their 18-day-old strike.76 Although unions are mainly mandated by their members regarding what is an appropriate offer, they nevertheless carry sufficient influence to end strikes in most cases. In the aforesaid public service “illegal” strike the union seemed to hold all the cards in the game of wage negotiations. On the one hand, the South African Democratic teachers Union (SADTU), the National Education, Health and Allied Workers Union (NEHAWU) and the Police and Prisons Civil Rights Union (POPCRU), the biggest of the Cosatu-affiliated public service unions,77 rejected the government’s offer.78 On the other hand, none of the Independent Labour Caucus (ILC) unions had made up their minds about whether to continue with the strike. The decision on whether to continue the strike was to be announced after COSATU and the ILC trade union bosses had met to consider government’s offer.79 This illustrates the influence trade unions have in deciding when industrial action is to cease. In practice much of what is considered acceptable in wage negotiations depends on the union’s opinion of the offer.

It would, however, be erroneous to ignore the role employers’ play in wage negotiations. Some employers set out to save costs at the expense of their employees with the aim of pushing profits up. It would be judicious of the employers to appreciate the role of employees in creating wealth for an entity. Reducing employees to the level of slave workers is indeed incongruent with the labour laws, which are enacted to

72 The right to strike is limited when coming to essential service workers, see s 65 of the LRA.73 Ledwaba (2010) at 4.74 Ledwaba (2010) at 4.75 1995 (6) BCLR 665 (CC).76 Waldner M “Signs of new life in wage talks” City Press (5 September 2010) at 4.77 Waldner 2010) at 4.78 Waldner (2010) at 4.79 Waldner (2010) at 4.


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protect workers from exploitation of any kind.80 It is of paramount importance that the workers should be remunerated in accordance with the wealth they generate. Employers should act sensibly to promote an efficient and effective dispute resolution. This involves appreciation of the employees’ worth and the increment of wages in accordance with the economic position.

During the strike of petrol attendants, it was revealed that workers took home at month-end a miserly wage of between R1100 and R1200.81 Most of this remuneration had to be spent on transportation to work. Thus, the workers could not do much with the wages they collected from their employer/s. Situations of this kind call for the levelling of the economic and social82 playing fields. The introduction of the minimum wage has, however, transformed the wages petrol attendants receive. Current rates are recorded as R1,126 a week in September 2018, increasing to R1,313 for the 2018/19 period. This translates to just over R4,500 a month, currently, moving up to R5,250 a month next year.

In this light, the government noticed that it is important that resources should be available to remunerate workers according to their worth.83 This involves a painstaking balancing act that requires special expertise.84 On the one hand, employers needs to be mindful of the fact that employees must be compensated according to their worth and should not unreasonably pursue ways to save costs at the expense of employees. 85 On the other hand, the employees should be realistic, and this implies asking for wages that are affordable. In most cases the employer will have full knowledge of the financial and economic feasibility of the wage demands. The workers, on the other hand, will be unable to understand such documentation even if it is provided – this is where unions should play a critical role. Steps ought to be taken to ensure that strikes do not drag on for unreasonable periods of time, and also to ensure that there is fair play with regard to the remuneration of employees and the employers’ competence to remunerate.

80 Motala M ‘Domestic workers in South Africa: It's modern day slavery’ (2010); available at http://sacsis.org.za/site/article/473.1: (accessed 29 November 2013).81 Waldner M ‘Attendants run on empty’ City Press (5 September 2010) at 10.82 See the preamble to the Constitution where it is stated that the object of the Constitution is to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. It has to be said that there cannot be social justice where there is no fairness and equality in labour relations.83 See part 4.2 below.84 See suggested solutions below at part 4.85 For instance, it has been reported that the CEO of Checkers was earning about R600 million per annum, while an average worker was taking home around R30 000 per annum. This discrepancy in remuneration cannot be reasonably justified in an ideal world. Although an investor, or for that matter a CEO, has to take risks which employees do not have to assume personally, it is necessary that the input of employees into the success of the organisation be recognised when they are remunerated.


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4 A NEED FOR CHANGE TOWARDS A SYSTEMATIC AND EFFICIENT FORUM: RECOMMENDATIONS

The lawmakers need to revisit the general policies of wage negotiations. It is recommended that the present labour rules should be improved with regulations that will curb lack of restraint in wage negotiations. The reform needs to force a shift to a more proficient wage dispute resolution process.

4.1 The need for trade unions to employ lawyers and accountants during negotiations in the bargaining process

One of the manifest deficiencies in the current collective bargaining system is the lack of the appropriate formal qualifications that a trade union negotiator ought to possess.86

This creates a bargaining system in which one party may lack insight into the underlying legal principles or lack the relevant economic and accounting expertise. This submission is not intended to suggest that all union negotiators lack adequate expertise. It is true to aver that trade unions employ the services of different people with sought- after expertise in different fields of profession. However, it is also fair that there should be a requirement that any trade union official involved in dispute resolution must possess a certain minimum educational qualification.87

Where there is insufficient knowledge, negotiations are likely to be unreasonably prolonged owing to one or two parties lacking understanding88 of the necessary financial or legal principles involved.89 This possibly creates a situation where unreasonable demands drag on for an unnecessary period of time. In the Transnet strike it was noted that the Transnet group had seen annual wage increases of about percent higher than inflation for the past seven years, whereas the company’s productivity had decreased by 4 percent.90 This shows that the employees were getting more from the entity than they were generating. Such was the tenacity of the trade unions in demanding more and getting it that they swore to continue with their unreasonable demands. The trade union was persistent in its unreasonable demands and often affirmed its position with the following statement: ‘If they came back with less than that we would need to go into mandating (with members), the strike will continue

86 See fns 112 and 119 for the current collective bargaining procedure.87 An almost similar suggestion now forms part of item 8 of the Draft Code of Good Practice: Collective Bargaining, Industrial Action and Picketing.88 Pinkley RL ‘Impact of knowledge regarding alternatives to settlement in dyadic negotiations: Whose knowledge counts?’ (1995) 80 Journal of Applied Psychology 403.89 Although it is correct to argue that lack of knowledge is not the sole contributor to prolonged strikes, it will similarly be unwise to aver that lack of knowledge does not affect negotiations in strikes. Common sense dictates that a person with insufficient knowledge and skill will take much longer adapt to issues than someone with apposite skill. Where the employer makes statements like: ‘We will keep our door open for genuine talks to seek a solution to the dispute when the unions are ready for a realistic and fair settlement’, this indicates that there is a need for a sound knowledge of current economic conditions as well as an appreciation of what the employer can afford. See Transnet labour unions to march to Parliament (2010).90 Prinsloo (2010).


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until further notice.’91 These statements demonstrate the necessity for negotiations to be conducted by those qualified to do so.92 Such negotiators will be able to balance employees’ demands, the company’s financial situation and current economic conditions in the country.

For instance, it would be irrational for a company to continuously increase wages beyond the inflation rate while experiencing a decline in production. In this situation there is a probability that workers will be retrenched to allow the employer to limit increasing costs. This in turn would push the unemployment figures higher and impose a huge burden of work on the remaining workforce.

During the Transnet strike union members went on strike for a number of weeks. This resulted in workers losing income. This state of affairs confirms the need for properly qualified persons to conduct negotiations on behalf of employees and who will be able to advise employees on what constitutes a fair offer and what does not.

4.2 The recommended bargaining process

The current bargaining process is fraught with problems. Providing the parties with the autonomy to determine the forum to hear their dispute and to choose the rules of engagement has indeed caused societal quandary.

In this section of the article I intend to contrast the South African regime with a regime of analogous stature, mainly to assess how trade disputes are dealt with in a similar jurisdiction. The Indian system seems apposite for such a comparative appraisal since India is a developing country and has experienced a time when any labour dispute could trigger a strike. Thus measures had to be formulated to limit unreasonable strikes.

4.2.1 Wage dispute resolution in India

In India, labour dispute resolutions between the employer and workers are regulated by the Industrial Disputes Act.93 Dispute settlement is moreover addressed by the Collective Bargaining Convention,94 which provides the bodies and procedures for the settlement of labour disputes.95 Historically industrial disputes arose in a myriad of

91 SAPA ‘Satawu: Transnet strike unavoidable’ (2010) available at http://www.news24.com/SouthAfrica/News/Satawu-Transnet-strike-unavoidable-20100507 (accessed 19 November 2012).92 Section 14 of the LRA provides procedures for the election of shop stewards, and their duties. From a reading of the section it is quite obvious that any elected person may assume the office of shop steward without having to comply with any educational qualification requirements. Thus, the constitution of the trade union governs specific matters with regard to the election and removal of, and any requirement to be satisfied by a shop steward. To suggest that some educational qualification is necessary in trade negotiation/s does not imply that shop stewards may not be involved in any other matter. However, where negotiations may require a party to possess a certain technical skill it would not be unreasonable to suggest that personnel involved in such negotiations should possess relevant qualifications.93 Industrial Disputes Act 14 of 1947.94 Act 154 of 1981.95 Arputharaj MJ & Gayatri R “A critical analysis on efficacy of mechanism to industrial disputes resolution in India” (2014) International Journal of Current Research and Academic Review 328 at 329.


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ways in the Indian jurisdiction.96 For example, it was not too remote for trade unions to suggest that ‘all workers should be given cars,’ and this was the subject matter of an industrial dispute, since it was connected, however remotely, to the terms and conditions of employment.97

Demands made by unions, generally preceding the negotiations for a long-term contract, were a common cause of major industrial disputes.98 If a labour dispute remained unresolved, workers had recourse to engage in industrial action. Consequently, workers in India enjoy the right to strike. The right to strike in India resonates with similar rights in other jurisdictions, and is limited by mechanism of the law.99 Although it is trite that Indian workers enjoy the right to strike, there are measures put in place to avert the misuse of this right. Thus, the right to strike, it is submitted, must be the weapon of last resort because if it is misused, it will create a problem in the production and financial profit of the industry.100

The parties to a dispute of interest have to follow protocols when attempting to resolve their dispute. It is basic that the employer and workers have to engage in negotiations to resolve their dispute before resorting to other means. If a dispute remains unresolved the matter should go through the process of conciliation before it could be referred to the appropriate authorities for adjudication.101 After negotiations have failed or after seven days the process of conciliation has failed; workers may embark on a strike provided that such action is not prohibited and must provide a notice in the prescribed manner.102

In India, similar to South Africa, the process of arbitration is not mandatory but voluntary in disputes of interest. In other words, it is within the discretion of the parties to elect to refer the matter to arbitration.103 It is documented that the process of arbitration is seldom used, mainly because employers and trade unions find it difficult to mutually agree on a suitable arbitrator.104 If the parties fail to settle their dispute via conciliation, and have eschewed the route of arbitration, governmental machinery takes effect. Industrial Tribunals are one form of government machinery, and are meant to assert jurisdiction over disputes of interest, inter alia, wage disputes, sharing of profits, compensatory and other allowances, and so on.105 The determination of Industrial

96 Lasing P & Kuruvilla S “Industrial dispute resolution in India in theory and practice” (1987) Loyola of Los Angeles International and Comparative Law Review 345 at 348.97 Lasing & Kuruvilla (1987) at 348.98 Lasing & Kuruvilla (1987) at 348.99 Section 22 of the Industrial Dispute Act No 14 of 1947 and Paul VVS ‘India: right to strike under Industrial Disputes Act 1947’ (2004) available at http://www.mondaq.com/india/x/24797/Workforce+Management/Right+to+Strike+Under+Industrial+ Dispute+Act+1947 (accessed 06 July 2015).100 Paul (2004).101 Arputharaj & Gayatri (2014) at 337.102 Section 24(2) of the Industrial Disputes Act 14 of 1947.103 Section 10A of the Industrial Disputes Act 14 of 1947.104 Arputharaj & Gayatri (2014) at 339 and Lasing & Kuruvilla (1987) at 358.105 Lasing & Kuruvilla (1987) at 362.


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Tribunals have the force of law similar to those of a court.106 Therefore, the decision handed down or the award sanctioned by a Tribunal is binding and final.107 It is held that the Indian system does not avert strikes but is efficient in curbing the perpetuation of strikes.108

4.2.2 The current wage dispute resolution system in South Africa

In South Africa, the dispute resolution machinery is not rigid, and therefore the route to resolving disputes of interest depends on the procedure the parties are likely to adopt.109 The responsibility for dispute resolution is shared by employers, labour and the State jointly.110 There is, therefore, some flexibility with regard to the choice of a forum and also the rules to be adopted for the parties’ dispute resolution process. The LRA encourages self-regulation with regard to dispute resolution.111 The parties are therefore free to select a forum which will best suit their needs.112 The procedures for resolving a dispute of interest are fairly straightforward.113 First, the in-house

106 Sections 7A & 7B of the Industrial Disputes Act 14 of 1947.107 Sections 17(2) & 17A of the Industrial Disputes Act 14 of 1947.108 Lasing & Kuruvilla (1987) 345.109 Brand J et al Labour dispute resolution 2 ed (Kenwyn: Juta 2008) at 40.110 Brand et al (Juta 2008) at 45.111 Brand et al (Juta 2008) at 30.112 Parties can elect any of the following forums to resolve their dispute: private conciliation, statutory conciliation, private arbitration, statutory arbitration, or Labour Court adjudication. A decision of the Labour Court is appealable to, and subject to review by, the Labour Appeal Court. A decision by any other statutory body is subject to review only. However, one noticeable problem with interest-based dispute resolution is the lack of court authority. The lack of authority does not apply to the determination of the legitimacy of the industrial action but to the power to enforce or determine the reasonableness of a wage offer or demand. The only statutory bodies which may provide a forum for parties with interest-based disputes are the Commission for Conciliation, Mediation and Arbitration (CCMA) and bargaining or statutory councils. However, their decisions are not binding on the parties concerned; thus these forums are reduced to nothing more than advisory bodies.113Sections 64(1)(a)-(d) of the LRA which states: ‘(1) Every employee has the right to strike and every employer has recourse to lock-out if- (a) the issue in dispute has been referred to a council or to the Commission as required by this Act, and- (i) a certificate stating that the dispute remains unresolved has been issued; or (ii) a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that-(b) in the case of a proposed strike, at least 48 hours' notice of the commencement of the strike, in writing, has been given to the employer, unless- (i) the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or (ii) the employer is a member of an employers' organisation that is a party to the dispute, in which case, notice must have been given to that employers' organisation; or (c) in the case of a proposed lock-out, at least 48 hours' notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or (d) the case of a proposed strike or lock-out where the State is the employer, at least seven days' notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c)’. Section 134 of the LRA states: ‘(1) any party to a dispute about a matter of mutual interest may refer the dispute in writing to the Commission, if the parties to the dispute are- (a) on the one side- (i) one or more trade unions; (ii) one or more employees; or (iii) one or more trade unions and one or more employees; and (b) on the other side - (i) one or more employers' organisations; (ii) one or more employers; or (iii) one or more employers' organisations and one or more employers. (2) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute’.


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procedures (which normally involve dispute resolution by negotiation)114 must be exhausted. Secondly, if the dispute remains unresolved, then the route of conciliation becomes available to the parties.115 The parties, similar to the Indian regime, could elect to refer the matter to arbitration.116 If the matter is not referred to arbitration, the workers may resort to industrial action to force the employer to heed their demands. In recent times, a ballot would be arranged for employees to vote on whether to engage in industrial action.117 This sort of system has proved to be problematic in resolving disputes of interest in some of the critical sectors of the economy.118

In view of the above, it would be wise to adjust the rules of engagement for certain industries. The alteration of the rules, in my opinion, will benefit workers and increase the sustenance of economic growth. The proposed change in resolution of disputes of interest should bear upon sectors that provide minimum services and those with vast economic impact.

Unnecessarily prolonged strikes in the abovementioned sectors have the effect of bringing the economy to a standstill. The operative word here is ‘unnecessary’. Although strikes are designed to influence the employer by causing it economic harm, this harm is intended for employers that negotiate in bad faith. Thus, the employer that has negotiated reasonably must not fall foul of industrial action rules. Law reform in this regard can play a major role in ensuring that the bargaining process is used for the benefit of workers and employers, and not for anything else. The aim is to ensure that dispute resolution becomes systematic and efficient. What is required is a simple and structured system in which an arbitrator is vested with powers to influence parties to a strike to agree on terms, and if necessary impose a ruling.119 In recent times

114Negotiation, as a method of dispute resolution, is a private, voluntary and consensual process whereby two (or more) disputants seek to resolve their differences personally by means of an agreement that governs their future relationship. In such a case, if the dispute remains unresolved, then the parties may approach a third party to help them to reach a compromise or agreement.115In such cases, the parties usually approach the CCMA, or the bargaining or statutory council, or a private dispute resolution agency.116 See Brand (2008) at 40117 Section 95(5) of the LRA.118 See parts 3 & 4.1 above.119 By law strikes must be commenced only with regard to matters of mutual interest. ‘The use of the term mutual suggests that a matter falls within the scope of the LRA if it is of interest to both employees and employers, e.g. wages or hours of work. The LRA provides that where a dispute may be referred for either arbitration or adjudication under that Act, the parties may not strike. Such disputes are referred to, in common parlance, as “disputes of right”, as opposed to “dispute of interest”, which must be resolved by industrial action’, see Grogan J Labour litigation and dispute resolution (Cape Town: Juta 2010) at 6. The courts have held that the term ‘matters of mutual interest’ covers a range of issues with regard to the workplace and commencement of industrial action, see Rand tyres & Accessories v Industrial Council for the Motor Industry (Transvaal) 1941 TPD 108. Although this article is concerned with matters of mutual rights, its focus is on interest based disputes. Thus, this article is not concerned with disputes of rights where rules of law contain procedures in respect of which the court has jurisdiction to adjudicate and deliver binding judgments, see ss 64(4) and 64(5) of the LRA which deals with matters of unilateral changes to the terms and conditions of employment. In the current regime the courts cannot provide binding judgments to settle disputes relating to wages. The CCMA and other advisory councils play a vital role in the mediation of the parties’ disputes; however, the parties have the final say with regard to the acceptance or rejection of offers, see Black Allied Workers Union v Umgeni Iron Works (1990) 11 ILJ 589 (IC) at 591.


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government officials were consulted to mediate on a dispute involving striking miners, this attempt bore no fruit.120 It is then prudent to craft a structure where it is mandatory for parties to a strike to approach an arbitrator to settle the issue. However, it could be argued that the whole rationale of a wage dispute system is to try to resolve disputes by collective bargaining and negotiation, rather than to quickly resort to other measures. As noble and true as this argument may sound, the current system has made it possible for some parties to misuse the freedom to negotiate in good faith in dispute resolutions. It is quite misleading to argue that an arbitrator mandated process will determine who should or should not be allowed to bargain. The parties can still bargain inside and outside arbitration, the arbitrator only secures efficiency in dispute resolution.

4.2.3 The proposed wage dispute resolution system

The current procedure has to continue to a certain point to encourage self-regulation, that is, parties must mutually agree to terms. Since failure to speedily and mutually agree to terms is rather the norm than the exception, the law has to regulate the process of collective bargaining. The process that is likely to advance the workers’ needs has to be structured in such a manner that an order of the arbitrator can bring the dispute to an end.

First, parties have to exhaust the available in-house procedures.121 If the matter remains unresolved then the route of reconciliation should be available. If the process of reconciliation fails to help parties settle their dispute, then the employees (in important sectors) can either elect to refer the matter for compulsory arbitration or engage in a strike. As a result, the employees are not deprived of their constitutional right to strike, but strikes are limited for the benefit of workers and employers alike. 122 It must be kept in mind that the right to strike in wage disputes emanates from contractual rights. In other words, parties cannot engage in a wage strike without first exhausting contractual negotiations. That means that the employer and employee have to genuinely fail to reach a contractual compromise before this right is triggered. Therefore, where the law lays down measures to assist the parties at arrive to a compromise without needless delays, such technique cannot be unconstitutional. Particularly, if the employees trust that their demand is legitimate, and can even strike to assert their position. Therefore, if the employees believe that the employer is negotiating in bad faith, then the employees can withhold their labour until the dispute is settled by arbitration.

120 The Minister of Mining was called in to help with the settlement of the wage strike in the prolonged platinum mine strike.121Employers, an employer’s organisation, employees’ representatives or trade unions may adopt their own in-house procedures.122Note that workers who are part of the ‘important service’ sectors should have a slightly unlimited right to strike, unlike the limited right enjoyed by essential services and maintenance services workers.


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However, it must be noted, the limited right to strike for persons employed in an essential service or a maintenance service must remain.123 Likewise, the employer of employees in essential services must remain without recourse to a lock-out.124 The fact that essential services workers have a very limited right to strike has been confirmed by the courts in a number of cases.125 In this respect, the concept ‘important services’ should be extended to industries that have an adverse effect on the economy (e.g. Transnet), where industrial action must be legally managed.126 The procedures proposed in this article should cover the so-called “important services” and the minimum services sectors, since the ‘essential services’127 rules include mandatory arbitration where the disputes remain unresolved.

In terms of the rule of limitation of rights entrenched in the Constitution, it would be reasonable to limit the effect of a strike by way of arbitration, where the strike has failed to break the impasse. Compulsory arbitration should be triggered when parties fail to arrive at a settlement by a voluntary method; if there is a grave economic crisis, grave public dissatisfaction; any national emergency; or parties are ill balanced and the public interest is of prime importance.128 The elapse of time after which the matter must be referred to arbitration after industrial action has commenced must depend on the importance of the sector, taking into account the interests of innocent third parties.129

To speed up the process, it is important that the same forum that was involved with the processes of reconciliation should arbitrate the matter. However, personnel chairing these forums must be changed – thus, the person who chaired the reconciliation process will have to transfer the documents to the arbitrator. Therefore, there should be no need for parties to present new documents except for those containing new evidence.

Since arbitration is a command process, the decision will be binding on the parties. As in the case with litigation, in arbitration a decision in the form of an award is

123 Section 65 (1)(d) of the LRA; s 72 of the Act states: The essential services committee may ratify any collective agreement that provides for the maintenance of minimum services in a service designated as an essential service. Also see s 75 of the Act with regard to what may be regarded as maintenance service.124 Section 65 (1)(d) of the LRA.125 See Cape Local Authorities Employers Organisation v IMATU 1996 ILJ 851; Tshabalala v Minister of Health and Welfare 1986 ILJ 168 (W); Langeberg Foods Ltd v FAWU 1992 ILJ 548 (E) and NEHAWU/HOSPERSA v Western Province Blood Transfusion Service 2000 ILJ 259.126 See fn 8 above.127 See fn 9 above.128 Mishra S ‘Arbitration as a method of Industrial Dispute Resolution’ (2013) available at http://www.lawyersclubindia.com/articles/Arbitration-as-a-method-of-Industrial-Dispute-Resolution- 5769.asp#.VZ-ehVKWhdg (accessed 10 March 2014).129 It is therefore important that Department of Trade and Industry (DTi) must categorise certain industries, for example ports dealing with the importation and exportation of goods could be classed as category A; for the industry engaged in the delivery and transportation of fuel, the classification should be category B, the mining industry could be category C and so on. Thus, the period within which the arbitrator may be approached should depend on the category of the industry concerned. Thus, it could be suggested that in terms of category A, the parties must settle the matter via arbitration if the strike persist for a period longer than seven days; and so on.


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imposed on the disputants.130 The disputants will then have to consider whether to settle the dispute within their own discretion or have a third party impose a ruling on them. In a forum of this nature the arbitrator should be provided with what the parties consider to be their demands and offers. With the help of an assessor the arbitrator should determine whether the demand (for a wage increment) or the employer’s offer is acceptable. An advantage of this procedure is that the forum may not be compelled to choose between one of the two figures brought before it. Thus, it is not compelled to make a choice on either the wage increase demanded or the employer’s offer. This will prevent the forum from having to decide between one of the figures presented to it no matter how absurd or irrational that figure might be. Thus, after perusal of the documents and the merits of the arguments put to it, the forum can decide on the reasonability of the amount of an offer or demand. The forum may make an award only on the basis of the most reasonable amount after perusal of all relevant documentation.131 This amount is likely to be between the employer’s offer and the wage increment demanded. This amount is what the parties usually settle for at the end of most protracted strikes.132 This does not imply that the middle amount is always a reasonable figure, since the increment demanded by the employees or the employer’s offer could also be the reasonable amount. Every case will then have to be judged on its own merits.

If any party to the dispute is dissatisfied with the award, then that party can approach the court for a review or appeal. This avenue should be made available to the parties to ensure fair-play. To avoid clogging the court system the party can approach the Labour Appeal Court (LAC) directly and with its leave the court may agree to hear the matter. It must be noted that for a speedy process documentary evidence 133 must play a vital role and oral evidence should only be provided when necessary. A judge should sit with a qualified assessor134 who is competent to advise the court on the matter brought before it. However, approaching the LAC should come with a certain

130 In fact, under s 31 of the Arbitration Act 42 of 1965 an arbitral award can be made and enforced as an order of court.131 The courts have hitherto pronounced on the reasonableness of offers (or figures) in terms of contract law, and as such, law forums should be no strangers in this field of dispute resolution. For case law where courts where competent to pronounce on the reasonableness of disputed amounts see the following cases, Versfeld v SA Citrus Farms Ltd 1930 AD 452 at 462; Phame (Pty) Ltd v Paizes1973 (3) SA 397 (A) and Novick v Benjamin 1972 (2) SA 842 (A). Although the Basic Conditions of Employment Act 75 of 1997 does not provide for general minimum rates of pay – ministerial determinations and sectoral determinations may provide the forum with prescribed minimum rates of remuneration. Inflation could also be a reliable determinant of the cost of living, and thus provide an appropriate measure for a wage increment. Thus, the ministerial determinations provide the law which the forum may rely on, and the amounts of the figures in dispute coupled with other economic factors (e.g. the inflation rate) presented to the forum, will provide the facts.132 The proof is provided by the Transnet 2010 strike.133 Seccombe v Attorney-General 1919 TPD 270 at 277. Only relevant document should be provided, and any conduct that appears to slowdown the process by the submission of irrelevant and long documents should be punished by the awarding of costs to the counterparty.134The person should at least possess qualifications that will enable him or her to understand the financial documentation brought before the court and also be able to understand the economic feasibility of the proposed offer or the wage increment sought. As such the person has to possess an economic, financial or any relevant management qualification.


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degree of risk and responsibility. The concerned party will have to approach the appeal court in the knowledge that there is a risk that costs will have to be paid if the court finds against it.135 This stipulation is necessary to discourage disputants from approaching the court with frivolous and vexatious reviews or appeals.

Given this, it is highly doubtful that employers and trade unions would use the dispute resolution system for matters that have little value for employees. In this kind of process, workers’ needs would be promoted and there would be no room for sideshows by the unions or employers. The employer, knowing that its offer is below average, would rather accede to the demand than have employees strike and have the matter referred to arbitration. Similarly, if logic prevails, the unions would advise workers to accept the employer’s offer rather than embarking on a futile strike which is likely to end in arbitration and the possible granting of an unfavourable award. The parties could either elect to adjust their figures to arrive at an agreement or have the arbitrator adjust the figures for them.

This system is improbable to clog the process in a legal quagmire of rules, procedures, appeals and reviews and make the situation even more antagonistic, slower to resolve, and even worse as a result. The current system (which encourages self-regulation) without doubt has made it possible for trade unions and their members to be defiant of the rules of collective bargaining, and sometimes makes disputes appear impossible to resolve.136 The proposed system contrasts with the present one, in that arbitration becomes compulsory and that the parties have a right to go on an outright strike after conciliation has failed, which implies that arbitration takes effect only after a certain strike period has elapsed. The establishment of the advisory arbitration panel has been proposed and implemented to manage certain industrial actions.137

It is doubtful that if the proposed system was in place, the deportment brought into focus in Marikana would have emerged. This is so, because after the arbitrator has handed down a decision (and if necessary confirmed by the appeal court) any conduct contrary to that decision would amount to legal consequences, either civil or criminal. Thus, the employer would be entitled to interdict the illegal striker and seek relief for damage suffered.138

135The issue of budgetary constraints may legitimately be raised. But then, this issue has to be weighed against possible economic loss experienced in many sectors. However, the responsibility must be placed on the parties to a dispute to approach the court with legitimate grievances. This should be done by providing the forum with the jurisdiction to penalise the party that approaches the court with a frivolous claim or defence. The party that is found to have unreasonably approached the court will have to pay court costs and those of the opponent. This provision will curb any possible floods of frivolous appeals and provide legitimacy to the process.136 The saga of the 2014 Marikana strike, where the government also got involved to help resolve the dispute.137 Sections 150A, 150B, 150C & 150D have been inserted into the LRA to regulate and arbitrate certain labour issues pertaining to industrial action.138 In this regard the employer can interdict the employees involved in an illegal strike and claim compensation for loss suffered from the employees and trade unions involved: see Algoa Bus Company (Pty) Limited v Transport Action Retail And General Workers Union (Thor Targwu) [2015] 9 BLLR 952 (LC); Verulam Sawmills (Pty) Ltd v Association of Mineworkers and Construction Union ('AMCU') (2016) 37


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It is to render ourselves defeatists to argue that the averseness of trade unions to abide by the rules would devalue any proposed system of law. It must be kept in mind that South Africa subscribes to the notion of the rule of law,139 thus the law ought to impose its rules lest anarchy may reign supreme. Therefore, trade unions and members who undermine the rules should be adequately chastised, if need be.140

4.3 The need for strikes to be restricted to prescribed places

I do not intend to attack the formulation of section 69 of the LRA or its soundness; neither do I intend to impugn its intended purpose. I do, however, intend to zero in on the erosion caused by the lack of its implementation and enforcement. The LRA set out the rules for picketing in support of a strike or I opposition to any lock-out. 141 Strikers may picket in any place to which the public has access, whether it be inside or outside the employer’s premises, provided that the employer grants permission to strikers to picket within work premises.142 Previously, the rules regarding the conduct of strikers during picketing were established through agreement between the parties to the dispute,143 and if there was no agreement the commission established picketing rules.144 However, this modus operandi did little to dispirit overzealous strikers, who were devoted to committing violence, from doing so. This led to the introduction of the Accord on Collective Bargaining and Industrial Action (Accord) which recognises various rights of strikers, non-strikers and the public.145 All parties to a dispute are now encouraged to commit themselves to ensuring a speedy resolution of the dispute and to avert violence, intimidation and the threat of harm to person or property associated with industrial action.146

The law sought to gain more control over strikes owing to the behaviour of certain striking workers. Constraining strikers to a prescribed area during picketing has now been proposed as a new law.147 It is well documented that in recent times, loss of life and damage to property have become all too common during industrial actions and have plagued lawmakers.148 The lawmakers therefore sought to moderate this situation

ILJ 246 (LC) (20 October 2015) and Verulam Sawmills (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) unreported (J158015) [2016] ZALCJHB 100 (15 March 2016).139 See s 1(c) of the Constitution, 1996.140 SACCAWU obo Mokebe v Pick'n Pay Retailers (2018) 39 ILJ 201 (LAC) and Ekurhuleni Metropolitan Municipality v South African Municipal Workers Union (2018) 39 ILJ 546 (LAC). In these cases the Court issued punitive cost orders against trade unions when employers sought interdicts to stop unprotected strike action.141 Section 69(1) of the LRA.142 Section 69(2) of the LRA.143 Section 69(4) of the LRA144 Section 69(5) of the LRA145 See the preamble of the Accord.146 Section 7 of the Accord on Collective Bargaining and Industrial Action.147 Item 30 of Draft Code of Good Practice: Collective Bargaining, Industrial Action and Picketing (Draft Code).148 Tenza M ‘An investigation into the causes of violent strikes in South Africa: Some lessons from foreign law and possible solutions’ (2015) 19 Law Democracy & Development 211 and Manamela E & Budeli M ‘Employees’ right to strike and violence in South Africa’ (2013) 46 (3) CILSA 308.


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by initiating codes of conduct during industrial action.149 Incidents of violence have first brought home to the court/s the lesson that applying a measure of responsibility to trade unions and their striking members is far more compelling than to permit aberration.150 Lawmakers followed suit by producing rules that limit demonstrations to prescribed areas, where striking workers will be identified when intimidating any persons, whether they are non-striking workers, customers of the company or even members of the public.151 Leaving the strike area with the intention of intimidating or causing public unrest constitute gross misconduct that warrants dismissal. This is sufficiently covered in the LRA; however, the conduct of some striking workers brings into focus the lack of any aspiration to enforce these provisions. This is far from wishing to suggest that such striking workers should be relegated to a part of the company premises that is out of sight, similar to being in detention, where their demonstration would be of no use.

Moreover, there should not be any need for strikers to carry weapons. This provision is contained in the Constitution.152 However, the acute issue is the failure to ensure that this provision is complied with. Such conduct should be considered to be a misconduct. The Constitution states that South Africa is a State that subscribes to the rule of law, and the law must be continuously upheld.153 Thus, carrying weapons to intimidate or demonstrate is conduct which is in stark contrast with what the Constitution, LRA and Draft Code provides. Such conduct therefore contravenes the principle of the rule of law.154 Those who argue in favour of carrying weapons on the basis of cultural practice ignore the very essence of the rules that are meant to protect all and to ensure safe demonstrations.155 Whether the proposals in the Draft and the new rules present an old but dubious vintage in a new bottle will only be known with hindsight. As I have intimated, the problem is not necessarily the rules, it is the lack of strict law enforcement.

4.3.1 The issue of damage caused by strikers

The common law states that those who commit harm or damage to another or his property are legally liable for the payment of damages. The action of the defendant must

149 The law has resorted to various measures, see ss 7, 9 and 10 of the Accord and item 33 of the Draft Code.150 See SATAWU v Garvas 2013 (1) SA 83 (CC) where the Court placed a measure of responsibility on the trade union and its members151 Item 32 of the Draft Code.152 Section 17 of the Constitution: ‘Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket, and to present petitions’.153 Section 1(c) of the Constitution: ‘The Republic of South Africa is one, sovereign, democratic state founded on Supremacy of the constitution and the rule of law’.154 Section 17 of the Constitution.155 Interesting enough, such persons do not usually carry these weapons at most ceremonies, while they do so during strikes and demonstrations, which by law must be free of weapons. It is quite ironic that such weapons are not carried at any other gathering but are preferred during strikes. One can only assume that these armaments are a means of intimidating and instilling fear in non-striking workers or the employer.


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be wrongful and he must have mens rea (fault) for his actions.156 Similarly, those who have the responsibility to ensure that certain people do not suffer damage, and omit to reasonably carry out this responsibility would be liable for damages to the party who suffers damage due to the omission. The question is - whether the defendant is negligent to be liable for damages.157 The common law states that the principal would be held vicariously liable for the acts of the agent, if the action of the agent led to another suffering damage.158 Similarly, the LRA empowers the courts to awards damages in cases arising from violations of provisions of the LRA.159 The court would consider these provisions of law when determining whether to hold the trade union and/or its striking members liable for the damage committed during strikes.160

At times during a strike, strikers may cause damage to property. In SATAWU v Garvas,161 the Constitutional Court held that in terms of the Regulation of Gatherings Act162 organisers of any gathering would be vicariously liable for damages resulting from such a gathering. Liability will not flow only if an organiser proves:163

a) that he or it did not permit or connive at the act or omission which caused the damage in question, and

b) that act or omission in question did not fall within the scope of the objectives of the gathering or demonstration and was not reasonably foreseeable; and

c) that he or it took all reasonable steps within his or its power to prevent the act or omission in question…..

It is not only the organisers that will be held liable for the damage ensuing from such a gathering; any person participating will be jointly and severally liable if they have contributed to acts that resulted in damage to property.164 The Court gave the following reasons for its decision:

“It is important to emphasise that it is the holders of the right who must assemble and demonstrate peacefully. It is only when they have no intention of acting peacefully that they lose their constitutional protection.165 The fact that every right must be exercised with due regard to the rights of others cannot be overemphasised.166The organisers must therefore always reflect on and reconcile themselves with the risk of a violation of the rights of innocent bystanders which could result from forging ahead with the gathering. The Act does not negate the right to freedom of assembly, but merely

156 Wingaardt v Grobler and another 2010 (6) SA 148 (ECG); Administrateur, Transvaal v van der Merwe1994 (4) SA 347 (A) and Marais v Richard 1981 (1) SA 1157 (A)157Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA); Minister van Polisie v Ewels1975 (3) 590(A) and Halliwell v Johannesburg Municipal Council 1912 AD 659.158 Government of the Republic of South Africa v Basdeo 1996(1) 355 (A) and Carmichele v Minister of Safety and Security 2001 (1) SA 489 (SCA) at para 7.159 Sections 68(b) & 158(1)(a)(vi) of the LRA.160 Cohen T, Rycroft A & Whitcher B Trade unions and the law in South Africa (LexisNexis 2009) at 83.161 2013 (1) SA 83 (CC).162 Act 205 of 1993.163 See s 11(2) of the Regulation of Gatherings Act 205 of 1993.164 Section 11(1) of the Regulation of Gatherings Act 205 of 1993.165 SATAWU v Garvas at para 53.166 SATAWU v Garvas at para 68.


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subjects the exercise of that right to strict conditions, in a way designed to moderate or prevent damage to property or injury to people.167 The purpose of the section is to ensure that a gathering that becomes destructive and results in loss to others does not leave its victims without recourse.”168

It is submitted that someone must be held accountable for any damage which may occur as a result of a gathering of striking workers. This is enough reason to restrict strikers to specific places where the identification of perpetrators would be possible. Where organisers elect to have striking workers march through the streets, they lay themselves open to the possibility that striking workers may vandalise private and public property. Where organisers foresaw the possibility of workers causing damage to property, and reconciled themselves to that possibility, they incur fault in the form of dolus eventualis. In cases where a reasonable person in the shoes of the organiser could have reasonably foreseen that striking workers would vent their anger on any property, but failed to take reasonable steps to prevent damage that might occur, fault takes the form of negligence.169 It is in the interests of trade unions to have strikes restricted to particular areas where they can monitor their members and be able to identify any perpetrators of violence. This would also prevent criminals from taking the opportunity offered by strikes to loot and steal from innocent bystanders. In any case, the responsibility to ensure that strikes are carried on in an orderly and peaceful manner, whether at gatherings or during marches, remains with the organiser. It would therefore be ill-advised for the organiser to continue with the strike demonstrations where the possibility of violence exists.

The law does not, however, address the issue of breakaway strikers who engage in violent conduct that results in damage to property or loss of life. Such conduct, it is submitted, is altogether criminal: but how should the issue of damage to property be addressed? Should the organiser be held liable for the acts of those who have broken away and are no longer part of the gathering? Is the provision that an organiser should take reasonable steps to guard against any acts that may cause damage relevant here? The organiser cannot prevent such breakaway strikers from leaving the gathering to cause upheaval elsewhere. It would be unfair to hold organisers liable for acts of those who are no longer part of the gathering. It is for this reason that the law should have rules that are directed at breakaway strikers who in many cases are likely to cause harm to property or to non-strikers. Any identified member of a group of breakaway strikers should be held liable for the acts of others.

4.4 The benefits of the proposed reform

The process of arbitration appears to be the far more apposite mechanism to revolve wage disputes; in this process, real workers’ interests and priorities will take preference. This process will drive home the fact that unreasonable conduct will only

167 SATAWU v Garvas at para 69. 168 SATAWU v Garvas at para 80. 169 SATAWU v Garvas at para 76.


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lead the matter to arbitration, where an award will be imposed on the employer or employee. The process of dispute resolution will be ameliorated.

The possibility of violence is lessened if strikes are restricted to prescribed places. First, it becomes easier to identify the perpetrators of violence. Secondly, intimidation of non-striking workers would be abated – for example the situation where medical staff and patients are threatened by striking hospital cleaners. Security personnel will be at hand to prevent any attempt to intimidate and to cause damage to private or public property.

5 CONCLUSION

The law tends to notice only its most patent defects. Even so, the call for reform only grows louder when such defects personally affect the privileged masses or when unnecessary loss of life occurs. It is when a debate for law reform often becomes chronic. Labour law reform, in my opinion, has been long overdue. The chronology of recent labour disputes is largely comprised of what is impossible to ignore. The roles of government, trade unions and its members have become blurred, as unrestrained conduct is often left unreprimanded.

The government suggested mechanisms to improve the delivery of education; the teachers’ unions did whatsoever possible to oppose such suggestions.170 One is prompted to ask whether the unions have officially assumed political positions, and thus have a say in governmental policy formulation. Labour laws are primarily enacted to sustain a democratic society through advancing workers’ rights; however, in some cases it seems the law is used for other reasons.171 The unions have created a period called the ‘striking season’.172 Unsurprisingly, this declaration did not have many jumping up and down in rapture and screaming: ‘Hip hip hurrah, the festive strike season will soon be upon us’. The law should be used for the purpose for which it was enacted and not for anything else.

It may appear that some of the statements made in this article are political; however, they are not intended to raise political issues. Then again, labour law has become infected with politics to such an extent that it has become impossible to separate the two. The article tries to untangle the law from politics. Although there is indubitably a correlation between law and politics, it is important that law should only be used for legal reasons. This is what the article strives to achieve.

What should concern lawmakers the most is the future the law intends to shape, and if the intention is to have a fecund labour-oriented future change is necessary.

170 Government suggested that teaching should be regarded as an essential service where the right to strike is limited. This suggestion was intended to improve the delivery of education in government schools. Unfortunately this suggestion met serious opposition from trade unions.171 See fn 52.172 Sapa ‘South Africa braces for ‘strike season’’ (2013) available at http://www.timeslive.co.za/local/2013/05/05/south-africa-braces-for-strike-season, [accessed 05 June 2013].


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There ought to be a twist in the accepted wisdom. Thus, positive criticism of an ailing regime ought to be taken heed of, if the aim is to create an efficient way of dealing with a matter that not only affects workers’ rights but is also of economic concern. It ought to be noted that this exposition is not formulated to be a salutary prophylactic, but as an influence towards a more proficient system.173 Ultimately, it is important to note that this article does not advocate for any economic systems. In fact, its aim is to address clear legal problems, even though there are some references to issues relating to the economy and politics. These are, however, the rudiments that are likely to be inherent in many labour law regimes.

173Indeed objections could be raised; strike protagonists may attack this article on the basis that it is unrealistic and out of tune with everyday realities. On the other hand, it could be argued that in most cases a proposal to discard a culture and embrace a new way of doing things is usually met with objections and rejection. That, however, should not stop us from searching for new ways of improving an unsatisfactory approach to resolving labour disputes. From this perspective, this article is relevant and in tune with reality.


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