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Right to strike versus right to life

Publish date: 25 March 2020
Issue Number: 4904
Diary: Legalbrief Today
Category: Constitutional

While the disaster management regulations that came into effect this month prevent ‘gatherings’ of more than 100 persons, the National Education, Health & Allied Workers’ Union (Nehawu) has threatened not only to go ahead with a strike on 30 March but to gather in groups of 99 people to protest against the state’s stance on wages. The DA has warned that it will interdict the threatened strike and protest action by Nehawu if it goes ahead. ENSafrica’s Joe Mothibi and Jessie Moore Julius Caesar say these threats highlight the competing constitutionally enshrined rights that are at play: the right to strike and peaceful assembly versus the right to life. ‘It will be interesting to see whether the DA’s threatened legal action will be upheld by the courts, given Nehawu’s rights to strike and peaceful assembly.’ In their analysis in Business Day, the authors note that it is possible – ‘maybe even probable’ – that a state of emergency may have to be declared. They believe that the Covid-19 pandemic – as well as any public disorder that may ensue if infection rates reach a doomsday scenario – could well fall within the ambit of section 37 of the Constitution, as well as the State of Emergency Act. ‘Assuming a state of emergency is declared, constitutional rights and civil liberties may be suspended for its duration. This would include the right of assembly and the right to strike and the like.’ The authors add: ‘It seems to us that in a state of emergency (should it come to pass), the right to life and the threat Covid-19 poses to SA at large would trump the right to strike. This would place the public sector unions on the back foot during a time when their members are expected to bear the brunt of the R160bn saving announced by Finance Minister Tito Mboweni in his budget speech a few weeks ago.’

Full analysis in Business Day