Nelson Mandela, Dullah Omar and other Cabinet ministers are taken to task for breaking the law during last week’s Cosatu strike
THE most astonishing feature of last week’s Congress of South African Trade Unions’ strike was not that it was unlawful, but that, even though it was unlawful, it was supported by the African National Congress, a multitude of Cabinet ministers and the state president.
The current Labour Relations Act (a product, originally, of the years of grand apartheid) prohibits and criminalises strikes in support of workplace demands that occur before its cumbersome “conciliation” procedures are exhausted; but when strikes are unrelated to any workplace issue, they are absolutely prohibited.
Thus, last Tuesday, all participants acted against the law, and so did everyone who incited or encouraged the strike. This latter category included not only Cosatu leader Sam Shilowa, but also President Nelson Mandela and, most incongruously, Dullah Omar, who seemed to be the Cabinet minister most loud- mouthed in support of Cosatu.
Yet as minister of justice, Omar has sought to establish the image of something of a “law and order” man, moaning, for example, about the rules for bail that were established by the courts in the year after the interim Constitution took effect.
His complicity in unlawfulness on so grand a scale, however, seriously undermines his credibility as the minister responsible for the administration of justice. More than anyone else, the minister of justice ought to propagate the value that citizens may act only under and within the law.
Consequently, Omar may well be remembered as the ANC Cabinet minister whose actions were more subversive of the new constitutional democracy than they ever were of apartheid.
What can be the explanation for the ANC’s short-sighted and discordant position? Deputy Minister of Constitutional Affairs Mohammed Valli Moosa gave a hint when he described the differences between the negotiating parties in the Constitutional Assembly as concerning the “essence of apartheid”.
One of these differences was the question of a lock-out clause in the new Constitution and, as such, Moosa’s comment provides an insight into how the ANC and its allies view the current Labour Relations Act. They are quite justified in this view — the current Act is designed to obstruct strike action, rather than to regulate it fairly, and historically was an important tool in the suppression and exploitation of black workers.
Perhaps the ANC’s support for Cosatu’s strike stems from its revulsion of the apartheid values that permeate the Act?
Er, no. The ANC was party to provisions in the interim Constitution that effectively preserved the current Act from constitutional attack until the new Labour Relations Act comes into operation in August this year. The current Act is therefore the ANC’s own interim choice, and if the Act prohibits strikes such as last Tuesday’s — well, that was its election.
More significantly, though, the Cosatu strike would have also been unlawful under the new Act.
Undoubtedly the president and the ANC have been on the receiving end of the usual third- rate political advice. But that is no excuse; the era of constitutionalism (“government under the law”, as the advertisment runs) has been ushered in by an act of expedient lawlessness, and that is a bad start. The government will be in real trouble if its example is followed by its citizens who may, of course, choose different laws to disobey.
That is why in constitutional democracies, governments don’t disregard laws they dislike. They change them. Without this basic commitment, the Constitution — whatever its content — will fail, and all the time, money, energy and inspiration expended on its gestation will have been utterly wasted.
A truly vexatious affair
AN interesting coincidence: Judge Edwin King – – whose controversial judgment in favour of two former policemen opened the door to potentially crippling legal challenges to the Truth and Reconciliation Commission — was nominated as a truth commissioner last year.
Judge King got as far as a shortlist of 46 potential candidates, but failed to make it through the rest of the selection process to a secure a pew alongside Archbishop Desmond Tutu.
In the Cape Supreme Court last week, Judge King ordered the truth commission to warn retired police Brigadier Jan Abraham and retired General Nicolaas Jacobus Janse van Rensburg if it would be hearing any evidence which could implicate them. He also ordered the commission to supply them with any relevant documentation.
The policemen brought their application against the commission after receiving a letter from the commission which said they could be implicated in connection with the disappearance of an activist in Port Elizabeth.
Lawyers said the decision could leave the commission vulnerable to other court orders forcing it to cross-examine, or even gag witnesses — features of normal “due process” which would paralyse its proceedings.
“From the start it has been clear that if lawyers get involved, it is the end of it (the commission). Some advocates could take weeks cross-examining a witness who would otherwise take the stand for just a day or less. This is a very unfortunate judgment,” said a leading attorney.
Just after Judge King gave his judgment, four army generals said they hoped it meant the commission would now cross-examine witnesses and put an end to the free-for-all of unsubstantiated allegations that had dominated the hearings so far.