Unfortunately for politicians, we don’t always get the journalists we wish for, and quite frankly we mostly just get to suck it up. I was not to be disappointed when I submitted a private members bill last year – Jan de Lange, who really isn’t my favourite, called it a “publicity stunt”. Apparently us opposition politicians are never up to his exacting standards. We push on, nevertheless.
I am currently pursuing my “publicity stunt” through all the mechanisms of Parliament this year, whether it finds purchase in the media or not – it’s just the right thing to do. The proposal seeks to amend the Labour Relations Act of 1995 by making unions jointly responsible with their members who commit acts of violence and damage to property during an organised strike or picket action. The law proposes that unions take steps to prevent, repair or remedy injury to a person and loss or damage to property as a result of strike action, that unions be made responsible for such acts committed during an organised and approved strike and that union responsibility be presumed where there is loss, damage or injury during strike action of their particular members. Courts would be given power to issue orders, award damages and declare if and when a strike is no longer protected, referring a dispute to arbitration if the strike has become violent.
There is little existing disincentive against acts of violence of this kind. This bill would incentivise unions and office bearers to take reasonable steps to avoid lawlessness. These measures could include a beefed up system of marshals, briefing sessions to educate workers on the legal limitations of picketing, better planning of routes and working with police officials to safeguard the public not involved in the strike. If union bosses agree that strikes must be orderly and peaceful, they should have no problem signing such legislation. I also believe employers can be made to pay if their security officials incite violence by physical action on site during a picket.
Of course, union bosses have reacted strongly against the legislation saying that I am trying to shut unions down, which of course is hogwash. The argument holds that I aim to bankrupt unions by this amendment to the labour legislation. The only way that this could bankrupt unions is if they repeatedly cause large-scale damage to property. Do they anticipate this? Or do they believe that it is their right to incite this violence and destruction of property?
But what of precedent and the constitutionality of such legislation? There are two ways in which this legislation finds precedent. The first is the so-called “soccer clause” in European legislation, which makes soccer clubs responsible for the repair of soccer and football stadiums when their overzealous fans or hooligans damage or destroy them. Soccer clubs have to ensure crowd control or pay the damages when incidents occur and it has become so effective that this idea is already implemented in South Africa even where no such legislation exists. Ironically in the week I tabled the legislation, one South African soccer club was fined R500,000 for hooligan behaviour in a stadium. The fans were throwing objects on to the field during the match. The Sapa story in the papers read: “Kaizer Chiefs were fined R500,000 by the Premier Soccer League's disciplinary committee on Tuesday for failing to control their fans during the MTN8 semi-final first leg against Orlando Pirates at the FNB Stadium. The whole amount was suspended for 12 months. As part of the punishment, Amakhosi chairman Kaizer Motaung was ordered to address a press conference within 14 days together with PSL prosecutor Zola Majavu. Chiefs were also ordered to pay the R21,000 cost of Monday night's hearing.”
The second precedent was established by the ruling of Judge John Hlope in the Cape High court in the case of damage to private motor vehicles and shop fronts in the strike action of 2006 during a joint class action against the union and the individual workers in that particular strike.
Business Day reported: “Judge Hlophe’s judgment was passed down in the case of Jacqueline Garvis and seven others who claimed R70,000 in damages from the South African Transport and Allied Workers Union (Satawu) and Safety and Security Minister Nathi Mthethwa under the Regulation of Gatherings Act after a protracted strike in May 2006 in Cape Town.
“The strike developed into a riot and resulted in damage to their property. Nearly 50 people died during the acrimonious strike.
“The question before the judge was whether section 11 of the act — which makes the organisers of a gathering civilly liable for any riot damage if the damage was ‘reasonably foreseeable’ — was inconsistent with section 17 of the Constitution, which guarantees the right to assemble, demonstrate and picket.
“Judge Hlophe found there was no inconsistency as the right to assemble had to be limited to peaceful gatherings only if other constitutional rights (such as the right to protection of individuals and their property) were to be respected,” wrote Linda Ensor.
Finally, a judge in KwaZulu-Natal in the matter between GrowthPoint and Saccawu found it acceptable to limit the right to strike under certain circumstances.
This is just another of those circumstances. It re-enforces the idea that rights are not generally absolute, but relative to other rights. For example the right to throw a party at your home is relative to the right to peace and quiet for your neighbour. In this case the right to strike needs to be balanced against the right of the public to protection of life and limb and the protection of their property.
The question for legislators is how to balance these common law and Constitutional rights in any new piece of legislation. Often we make laws and then find that in practice the law needs to be amended as there are unforeseen consequences which unbalance the relationship between two rights.
In South Africa, the right to strike, in my opinion, needs to be balanced in several cases. One of those is in education, where it would be wrong to ban teachers from protesting against their poor wages. However, due to one of the teachers’ unions behaving in such a poor fashion, it is difficult to imagine that they have any concern for the plight of our children. Children have a right to a decent education and safety. Together with colleagues, we are debating how to improve this.
However on 16 March, I have been invited to present my case before the Committee for Private Members Legislation. This is the notorious committee where legislation proposed by opposition members goes to die. It is the committee used by the ruling party to prevent legislation proposed by the opposition from ever seeing the light of day. What the committee effectively does is bog down the proposal with all kinds of requirements of proof that this legislation is necessary, that it is Constitutional, and that it will not conflict with existing legislation or cause undue costs to the state. As I understand it, this obstructionism is what provoked Mario Ambrosini to challenge the work of this committee in court. He is maintaining that this committee was designed as a clearing house merely to ensure that proposals are in the correct textual format before being submitted to the relevant portfolio committee, taken to be drafted and then submitted to the National Assembly. Instead, the committee appears to be effectively silencing the opposition’s proposals permanently. Ambrosini appears to be correct. Alas, my proposal will be heard before the court case ...
So what is left to me, as a member of the opposition, is to debate the merits of my proposed bill in the media. Some may call it a publicity stunt, but the more people get to hear it, the better. DM
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