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Judiciary key to facilitating change – Madonsela

Publish date: 10 September 2018
Issue Number: 790
Diary: IBA Legalbrief Africa
Category: South Africa

The judiciary has helped steer SA away from a constitutional crisis and towards a vibrant and healthy democracy. Legalbrief reports that this is the view of Advocate Thuli Madonsela, who addressed the 21st annual conference of the South African Society for Labour Law (SASLAW) in Cape Town on Saturday. Under the theme ‘Dawn or Dusk in the Ramphosa era?’ she said the judiciary has played an important role in facilitating change ‘and has earned its right to be labelled the ultimate guardians of democracy’. ‘Whatever our troubles, we are a democracy that works very well. The ultimate guardian of our Constitution, the courts, can tell us what to do,’ she said. She also noted the many societal ills we attribute to government 'are the collective impact of actions and inactions of all role players in society, including corporate citizens'. 'With Lonmin (the Marikana tragedy), everyone blames government and the police, but we must realise that had management done what is was supposed to do, it would have been averted. They failed to meet their corporate responsibilities and act within the Mining Charter,’ she said. The Forbes Africa Person of the Year (2016) said the ordinary worker is a vital link in the employment structures of corporations and organisations. ‘With the listeriosis outbreak, who took responsibility? The CEO, but who is also responsible? The cleaners on the factory floors. Everyone needs to be responsible for the space they occupy,’ she said. She unpacked the many positives in SA, including the fact that ‘we have a business literate President’ and local firms are now operating throughout the continent. The negatives, she said, include the technical recession, high poverty and unemployment, violent protests, labour unrest and land bickering.

This weekend’s proceedings saw SASLAW coming of age with outgoing President Shaminma Gaibie describing it as ‘a dynamic force in the world of employment’. Delivering the keynote address on Friday, Deputy Economic Development Minister Ebrahim Patel said the 21st anniversary of the conference provides an opportune moment to reflect on SA’s post-apartheid journey and its ‘vast mood swings’. The common thread running through his speech was that ‘we need to do extraordinary things to address the legacies of the past’, but the country continues to rise to this challenge. 'For example, there were just 120 000 black graduates at the dawn of democracy and that number has surged to 840 0000. ‘And since 1994, 7.3m jobs have been created – that’s an average of 300 000 a year,’ he said. Patel who was the chief negotiator on the Labour Relations Act (1995), said one of the benefits of the state capture and corruption scandals that threatened to rip the government apart is that it saw society and many trade unions and organisations standing together. ‘We all know that corruption leaks wealth to those that did not earn it. It is not an innocent, victimless crime, and it shifts the focus away from legitimate ways of creating wealth,’ he said. ‘We have made enormous strides in regaining credibility, but we are not out of the woods yet,’ he said. Earlier, Judge Violet Phatshoane focused on the challenges women continue to face in the workplace. While gender-based discrimination is unlawful in SA, Phatshoane notes that the facts speak differently ‘and there is a real need to change the mood that allows discrimination of women in the workplace’. Phatshoane who has acted in the Labour Court and Labour Appeal Court, added that it remains the responsibility of the national authorities to meet the challenge’.

Bradley Conradie and Halton Cheadle (both BCHC attorneys) focused on the inequalities of South African society ‘which is reflected on racial and gender terms and is a reality that needs to be addressed’. They concurred that there is a sense that government has failed to deliver on the promises it has made. However, one concrete development was the passing of the Minimum Wage Bill, which will see workers earning R20 per hour (or R 3 500 per month). ‘It’s been a long debate with lots of resistance, particularly from the trade unions, but there are mechanisms in the Bill to change (the rate) going forward,’ Conradie said. The Basic Condition of Employment Act, Private Labour Laws Amendment Bill and Labour Relations Act are also being revisited to address the country’s ‘unacceptable socio-economic conditions and service delivery failures’. Other topics addressed at the two-day conference included sexual harassment in the workplace and the impact of the ‘Me Too Campaign’, the economics of labour law, challenges facing bargaining councils and affirmative action and unfair discrimination.