Traditional Courting

Oh ja, the Traditional Courts Bill? I’ve heard about it. I know it’s being argued by lawyers and stuff, and that it’s bad. But it doesn’t really affect me, so I’ll leave them to it. I’m sure they’ll sort it out?

That’s a valid argument if you’re not a black and living in a rural area. I, for one, am not. I’m a white girl living in Cape Town. So why do I care? And what difference does it make that I do? I’m just a student – not a professor or an advocate or a judge after all.

I care. And while I care, I’m not trying to coerce you into caring. By the end of this post, you still might not. And that’s fine. We all care about different things. Let me tell you why I care about this one, and why people are up in arms about this Bill.

Now the Traditional Courts Bill, I was told by Jeff Radebe,[1] is a Bill, not an Act.[2] This, I’m sure everyone knows, but thanks Minister for clearing it up anyway. A Bill is proposed legislation that is not legally binding because it is not enforced…yet. An Act is when that Bill is passed.[3]

That’s what stage the Traditional Courts Bill is in. This is the time when people can speak out; it’s the time when the public actually has a say. When it becomes legislation, it’s goodbye to our opinions. From there, people whose rights are discriminated against because of this new legislation have to bring their case to court, and hope that the court finds the Act unconstitutional.

If the Traditional Courts Bill was passed tomorrow as is, there would be loads of discrimination and unfair treatment of people. One of the particularly awful parts about this Bill being passed (versus the passing of other bad Bills) is that this Bill is specific to rural people. These people are the ones who have the least access to justice and information in the country. A law that is unconstitutional to them will take longer to fix than one that is unconstitutional, say to big companies.

So what’s bad in this Bill? The Law, Race and Gender Research Unit of UCT has made various submissions against the Bill. They highlight the ten problems with the Bill as:

1.       It creates a second-class justice system for over 17 million South Africans.
2.       It gives even more power to those chiefs recognized by the state law and nothing to all other legitimate traditional leaders.
3.      It allows these chiefs to decide what custom means.
4.      All other members of the community, including women and young me, are not included in decision making.
5.      It removes checks and balances on power, creating room for corruption, including the power to demand illegal levies.
6.      It confirms apartheid “Bantustan” boundaries.
7.      It negatively affects women, especially by supporting rules that prevent women from representing themselves.
8.      It allows for forced labour and removal of customary benefits as punishments.
9.      It applies to everyone; you cannot opt out even if you have valid reason.
10.      Regardless of what charge you are facing, you can never ask for legal representation.[4]

That’s why it needs to be fixed.

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[1] Whiteys, say this ‘gah-deh-beh’.

[2] This was a response to my question in a question-and-answer session during his speech on Access To Justice at UCT last week (15 October).

[3] For further discussion of this process, see an earlier Voetnotes post, “PPI: Our Personal Ally” at https://voetnotes.wordpress.com/2012/09/17/the-ppi-our-personal-ally/

[4] For more info email stopthetcb@genderjustice.org.za

Objective Objector?

Today, I dedicate this voetnote to Thuli Madonsela, the Public Protector of South Africa. Let’s delve into what exactly her job is all about, and whether the ‘knives out for Madonsela’[1] will stab into her, or not.

The Public Protector’s job is to strengthen constitutional democracy by ‘investigating, rectifying and redressing any improper or prejudicial conduct in state affairs and resolving related disputes through mediation, conciliation, negotiation and other measures’.[2] This allows for ‘fair, responsive and accountable public sector decision-making and service delivery’.[3]

As you can see, the Public Protector’s job is very important, and it is imperative that she remains impartial and objective throughout her work as Public Protector. She is, in effect, there to look after public interest by reprimanding the baddies. If you have a problem with what government’s doing, you talk to Thuli. And at her discretion, her and her office will try to sort it out.

Because of this, you can understand how any Public Protector who investigates someone’s conduct is not always going to be liked, especially by that person and supporters of that person. And because of this, there are special provisions in Chapter 9[4] that safeguard that person. For instance, if it were in the public’s interest to investigate the president’s actions, the president might want the Public Protector removed from office and replaced by someone who’d let them be as hubris[5] as can be. Not to say that is what the president wants, that was just a random example.

Here’s one that’s actually going on. Some high-profile ANCers[6] are accusing Madonsela of showing a bias against the ANC, and being in favour of the DA. This was brought up last month when Madonsela spoke about being a Public Protector at a DA-organized event.

Yet Madonsela has been known for her transparency, having personally applied for Parliament to institute an investigation into herself months before, when she received an anonymous letter saying that she was bias towards the DA.[7] These wild allegations of the ANC that Madonsela had been acting outside her jurisdiction have been approached by Madonsela’s spokesperson, Kgalalelo Masibi, who said said: ‘Should anyone know of a case the Public Protector took that is outside her jurisdiction, the PP[8] eagerly awaits such information’.[9]

Parliament has not issued an investigation into Madonsela yet, but it will happen. If this investigation finds that she is guilty of ‘misconduct, incapacity or incompetence’[10] then the National Assembly must call to have that person removed.[11] After this, there must be at least a two-thirds majority vote on it at the National Assembly to vote the PP out of office.

But will this ever happen to Thuli, the Daily Maverick, 2011 South African Person of the Year, awarded ‘for serving her role as an ombudsman to the exercise of executive power with unwavering commitment to truth’?[12]

Stay tuned.

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[1] Legal Brief, 15 October 2012.

[2] Public Protector web page available at http://www.pprotect.org/about_us/Vision_mission.asp.

[3] Ibid.

[4] Yip, of the same old Constitution of 1996.

[5] To think of oneself above the law.

[6] Minister of Higher Education, Blade Nzimande, and Chief Whip, Mathole Motshekga specifically.

[7] Eyewitness News available at http://ewn.co.za/2012/10/14/Madonselas-conduct-to-be-probed.

[8] Public Prosecutor.

[9] The Citizen available at http://www.citizen.co.za/citizen/content/en/citizen/local-news?oid=329286&sn=Detail&pid=40&Public-Protector-denies-wrongdoing

[10] Ibid at 194 (1) (a).

[11] Ibid at 194 (1).

[12]Daily Maverick available at http://dailymaverick.co.za/article/2011-12-05-thuli-madonsela-2011-south-african-person-of-the-year.

They Like to Strike

‘I’ve always wondered this. Who are “they”?’  said Drew. ‘You know, “them”’ answered Claire. ‘”Them”’ Drew muttered. ‘The inimitable collective “them”’ added Claire.[1]

In this case, the ‘inimitable collective them’ be the strikers. None in particular, just them. We could look to Marikana, or maybe to the truckers[2] if we look to the front pages of newspapers this past week. Maybe we could look at the municipal workers[3]. Or maybe to teachers; to nurses[4]; to transportation in general; to the miners again[5].

But the focus of this post is not to isolate one particular strike. It is not to watch what they are doing, decide if it’s right, if it’s wrong. To watch them shake their firsts and if they’re doing it wrong to wrap them on their proverbial knuckles.

Instead, it’s to set out the basics about striking.

Striking, I’ve been told (by s 23 of our Constitution[6]), is good. Well, it actually says that ‘every worker has the right to strike’.[7] So striking’s a right. And rights are good.

So they’re good, but what exactly are they? Strikes, according to s 213 of the Labour Relations Act,[8] consist of these elements:

1. Specific acts or omissions by employees or previous employees, for example, a refusal to work
2. The action has to have a certain aim or purpose, to attempt to remedy a  dispute or solve a grievance relating to a matter of mutual interest between the employees and employer
3. The action must be collective.[9]

 

But this is just a definition of a strike, and this definition has to comply with s 64[10] to constitute a legal strike. If they are legal, they are called ‘protected strikes’. It’s a long list, click on the ‘sources’ tab for the Act and find the provisions there, or accept my summary:

 

The dispute must be referred for conciliation; the CCMA[11] or bargaining councils must try to resolve the dispute; a certificate must be issued saying that the issue has not been resolved; written notice of the strike must be given to the employer.[12] After all of this, if all these requirements of s 64 have been meet, then the strike is protected.

 

But what exactly are they protected from? Mainly from being fired. Also, their actions – being delictual or actions which breach their contract – cannot be claimed against. So that means, so long as the strikers don’t commit any crimes[13] (like vandalism, violence, theft etc) you cannot take them to court for their actions performed while striking.

 

But does that mean the employers are vulnerable? Not if they hear the issues of the employees. Strikers won’t be protected, for instance, if the parties have agreed to refer the issue to arbitration.[14] And while employers cannot fire protected strikers who are acting within the scope of the Act, they can follow ‘no work no pay’ and not pay the workers during the strike. They can also employ replacement workers to work temporarily while the protected strikers are striking.

 

As Johan Olivier[15] says: ‘Strikes and lockouts[16] are essential elements of the collective bargaining process in the workplace. For both employees and employers they provide the necessary leverage to back up their demands.’[17]

 

Now at least we know a little more about what it’s all about, and how knit-picky it is to pick up a picket and strike.

 

 

 

 

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[1] From the 2005 film, Elizabethtown.

[2] http://www.bdlive.co.za/world/africa/2012/10/09/truckers-strike-in-sa-could-cripple-zimbabwe

[3] http://www.reuters.com/article/2012/10/08/us-safrica-strikes-municipal-idUSBRE8970I320121008

[4] Actually, nurses aren’t allowed to strike as they are form part of ‘essential services’ according to s 65 (d) (i) of the Labour Relations Act.

[5] http://www.timeslive.co.za/local/2012/10/08/cosatu-calls-for-amplats-to-reinstate-workers

[6] The Constitution of the Republic of South Africa, 1996.

[7] s 23 (2) (c).

[8] of 1995.

[9] Seen at: http://www.retrenchmentassist.co.za/index.php/ra-newsletters/115-protected-strikes

[10] Supra note 8.

[11] Commission for Conciliation, Mediation and Arbitration.

[12] Private sector employers need 48 hours’ notice whereas the state needs 7 days’ notice.

[13]  ‘Labour legislation acknowledges the right of workers to strike. But the moment they take up a stone or try to intimidate people, it becomes a crime’ says Labour lawyer Gerhard  Erasmus.

[14] Which is when an arbitrator sits with the facts of both issues and tries to work out a compromise which works best for both parties.

[15] Director at Brink Cohen Le Roux.

[16] When an employer isn’t happy with employees they can, by following the correct legislation, have their own version of a strike in the form of a lock down (where workers are not allowed access to the premises).

[17] See his article at: http://www.bclr.com/EntrepreneurArticles/BCLR%202010%2004.pdf.

Klapping Rugby Boets[1]

As a South African when I think of rugby I think of biltong, beer and Lays chips. I think of Afrikaans men waving their fists at the TV, I think of students packing up pubs. Rugby, I think of it happily – the gees[2] sport of South Africa. What a game.

From the supporters stand, I see injuries and black eyes and I wince. Bad tackle. ‘Yellow card that, ref!’ And then I forget about it as the player rises up and wins the game for us. The game of champions.

But what happens when the player doesn’t rise up? What happens when he (or she) is out for the match – out for the season? What happens if they can’t play ever again? What happens they will never be champions again?

And what if all of this is due to the fault of another player?

Welcome to Roux v Hattingh.[3] This is a case in which a player broke his neck during a scrum.  Here’s to getting rugby technical: the plaintiff and the defendant were both hookers on opposite teams. During the scrum the plaintiff moved his head to close the gap where the defendant’s head was supposed to go. This meant that the defendant’s head had nowhere to go but down and down it most certainly went – which resulted in him breaking his neck.

In the high court it was found that this action was indeed wrongful – and therefore Ryand Hattingh could successfully claim against Alex Roux for damages. Roux brought this on appeal to the Supreme Court of Appeal, who dismissed the appeal last week.

The SCA[4] ruled that contravening the rules of rugby which results in serious injury can result in legal liability.

Because it was heard in the Supreme Court of Appeal, this decision is applicable to everyone in the country. If the quote below is true, we may have a problem.

Serious sport has nothing to do with fair play. It is bound up with hatred, jealousy, boastfulness and disregard of all rules and sadistic pleasure in witnessing violence: in other words it is war minus the shooting.[5]

If rugby is not as clean cut as its rules make it out to be, then will this legal liability change the game of rugby? Will players be more cautious when playing to avoid legal liability? Will people start suing each other left-right-and-centre?

Or will everyone give up rugby and start playing golf instead?

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[1] The Slick Tiger’s Guide to Klapping Gym Boet! Available at  http://slicktiger.wordpress.com/2010/02/09/the-slicktiger-guide-to-klapping-gym-boet/

[2] To have spirit.

[3] (636/11) [2012] ZASCA132

[4] Supreme Court of Appeal. Top court in the land. The one whose decision is final and means that every other case like it has to follow what they say from now on.

[5] Stolen mercilessly from LLB student Zack Beukman’s thesis, Legal Recourse Available to the Injured Player; Grayson Sport and the Law 100.