Constitutional Hill

Sharp divisions on the Constitutional Court about the right to strike

In the aftermath of the Marikana massacre, the rights of striking workers and the unions they might belong to have once again come under the spotlight. Judging from the letters pages of middle brow newspapers, blog comments and callers to phone-in programmes, many middle class South Africans are about just as sympathetic to strikers and their constitutionally protected rights as they are to Julius Malema. Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.

Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.

In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.

Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.

For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.

As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:

The point of departure in interpreting section 64(1)(a) [and, one assumes, section 64(1)(b)] is that we should not restrict the right to strike more than is expressly required by the language of the provision, unless the purposes of the Act and the section on “a proper interpretation of the statute … imports them.” The relevance of a restrictive approach is to raise a cautionary flag against restricting the right more than is expressly provided for. Intrusion into the right should only be as much as is necessary to achieve the purpose of the provision and this requires sensitivity to the constraints of the language used.

It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.

This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:

to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process.

The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.

In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:

if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees’ demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules?

The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”

The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.

The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.

The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.

Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.

  • http://www.alternativeroute.net jacques

    Please can you clarify the difference between an unprotected and protected strike and an illegal strike versus a legal strike. The media seems to be using these terms interchangably. I am confused.

  • Donovan

    “Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.”…..unfortunately, this statement is so true.

    Change will have to come. The middle class continues to believe that they will become a part of the wealthy 1%. Able to go abroad when the savages from the poor and working class rise. Yet do not realise that they are one salary away from poverty, and so they continue to protect the 1% believing that they will join them soon.

  • Blatherwick Ashburner

    If the Bill of Rights right to strike is taken as is and without restriction then is it necessary for any employee or union to give notice of a decision to strike? Would unprotected and wildcat strikes be deemed to be compliant with the the Bill of Rights? Or would this be limited in terms of section 30.

  • sirjay jonson

    It will be interesting to discover how many future decisions will be delivered with this 5-4 split, and what will the ANC do about it. I think with this decision, especially with the impact of Marikana, the cards are face up on the table.

  • sirjay jonson

    This question beggars an answer re the ANC stacking the cc and other; a transformed judiciary, but transformed for who? As evidenced by the so called transformed minority in this decision, certainly not for the common people.

  • spoiler

    Spot on with your last comment there Donovan – the middle class is debt ridden not wealthy – just better able to afford more debt than the working class which is simmilarly over indebted in many cases.

    The CC appears to have made the correct decsision here – it is worrying that the minority found against the Union – our new CJ continues to show his credentials or lack thereof…

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    LOL PdV!

    Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision.

    Recall that when Zuma suggested that Malema is gonna be president of South Africa, COSATU cheered.

    Now they will probably realise that most of Zuma’s dodgy choices are much the same calibre as Malema.

    Oh well – we’re stuck with Moegeng for only 9.3789 years more. Unless god start’s fidgeting again.

  • Pierre De Vos

    The LRA places explicit restrictions and limitations on the right to strike. This majority in this case found that one should not interpret the Act to place further limits on the right to strict in the absence of clear language indicating such. The minority wanted to interpret the section to place such a further limit on the right to strike despite the fact that the section did not explicitly require this.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Pierre De Vos
    September 25, 2012 at 14:10 pm

    “The minority wanted to interpret the section to place such a further limit on the right to strike despite the fact that the section did not explicitly require this.”

    So much for separation of powers!

  • Zoo Keeper

    Protected / legal strike is where the employees on strike cannot be dismissed for the strike, just have pay deducted.

    Unprotected / illegal strike is one where the employees have not complied with the legal notices etc and may be dismissed.

  • pekkil monta

    so, given this majority view – why exactly would anyone now join a trade union? Doesn’t this decision simply incentivise the ‘free-rider’ problem (to stay in the language of satawu), which will ultimately undermine the Unions?

    Apart from this – does this mean employers can therefore assume that anyone not working has come out in sympathy with a protected strike, regardless of whether they were actually on strike or, just to name something arbitrarily, were cowered and intimidated into staying away from work? And use the ‘no work, no pay’ rule, of course?

    Lastly, if the unions needed this example to help them question the wisdom of zuma’s recruitment decisions, they haven’t been paying attention. I bet that point was made a while ago

  • Gwebecimele
  • Spuy Sebotsa

    Jacques the media and some analysts are simply talking absolute bull, there is no such thing called an “illegal strike”..the strike is either protected, in that it complied with the requirements of sec 64 of the LRA or unprotected if it did not – finish en klaar….Great analysis Prof

  • Maggs Naidu – (maggsnaidu@hotmail.com)
  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Prof Pityana and his short memory!!!!!!!!!

    He said the ANC and its allies treated with suspicion and hostility any ideas that did not reinforce their own “stereotypical reality” and sought to silence the likes of The Spear artist Brett Murray, cartoonist Jonathan Shapiro and expelled ANC Youth League president Julius Malema.

    http://mg.co.za/article/2012-09-25-pityana-sa-must-take-responsibility-for-failures

  • Chris (Not the right wing guy)

    “Judging from the letters pages of middle brow newspapers, blog comments and callers to phone-in programmes, many middle class South Africans are about just as sympathetic to strikers and their constitutionally protected rights as they are to Julius Malema. Many middle class South Africans of whatever race seem to view striking workers as something of a menace . . .”

    I wonder why would that be the case. Could it be because in South Africa striking workers have a reputation for being violent, damaging property for no apparent reason, intimidating and even murdering workers not striking with them?

  • Mikhail Dworkin Fassbinder

    Then said Almitra, “Speak to us of Love.” And he raised his head and looked upon the people, and there fell a stillness upon them. And with a great voice he said: When love beckons to you follow him, Though his ways are hard and steep. And when his wings enfold you yield to him, Though the sword hidden among his pinions may wound you. And when he speaks to you believe in him, Though his voice may shatter your dreams as the north wind lays waste the garden. For even as love crowns you so shall he crucify you. Even as he is for your growth so is he for your pruning. Even as he ascends to your height and caresses your tenderest branches that quiver in the sun, So shall he descend to your roots and shake them in their clinging to the earth. Like sheaves of corn he gathers you unto himself. He threshes you to make you naked. He sifts you to free you from your husks. He grinds you to whiteness. He kneads you until you are pliant; And then he assigns you to his sacred fire, that you may become sacred bread for God’s sacred feast. All these things shall love do unto you that you may know the secrets of your heart, and in that knowledge become a fragment of Life’s heart. But if in your fear you would seek only love’s peace and love’s pleasure, Then it is better for you that you cover your nakedness and pass out of love’s threshing-floor, Into the seasonless world where you shall laugh, but not all of your laughter, and weep, but not all of your tears. Love gives naught but itself and takes naught but from itself. Love possesses not nor would it be possessed; For love is sufficient unto love. When you love you should not say, “God is in my heart,” but rather, I am in the heart of God.” And think not you can direct the course of love, if it finds you worthy, directs your course. Love has no other desire but to fulfil itself. But if you love and must needs have desires, let these be your desires: To melt and be like a running brook that sings its melody to the night. To know the pain of too much tenderness. To be wounded by your own understanding of love; And to bleed willingly and joyfully. To wake at dawn with a winged heart and give thanks for another day of loving; To rest at the noon hour and meditate love’s ecstasy; To return home at eventide with gratitude; And then to sleep with a prayer for the beloved in your heart and a song of praise upon your lips.”

    Thanks

  • Lisbeth

    :The majority seem to be decidedly more progressive …”

    Progressive! Pah! It’s the minority that should be commended for having at least a modicum of common sense.
    These seemingly never-ending strikes we’re seeing will merely achieve that businesses (the evil capitalists) will be forced to mechanise more, resulting in fewer workers being needed, perhaps scale down their operations and dismiss some surplus workers, or pack it in altogether and move their business elsewhere. In other words, there will be massive job losses. Take Lonmin as a for instance: having to pay workers increases that are way above inflation, they dismissed 1200 Murray & Roberts workers who were supposed to open a new shaft, which has now become unaffordable. What we will see is no more future expansion.

    That said, it is a most inauspicious time in the present dismal world economic climate to harp on strikers’ rights. Elsewhere in the world, workers are having to accept pay cuts in order not to become unemployed. Get real, Prof, for Pete’s sake.

  • http://www.ozoneblue.co.za/ ozoneblue

    Mikhail Dworkin Fassbinder
    September 25, 2012 at 18:03 pm

    “To know the pain of too much tenderness. To be wounded by your own understanding of love; And to bleed willingly and joyfully.”

    That much is very true, yeah.

    “Lewis, the former undisputed heavyweight champion from Britain, said he was stunned “by the tragic death of my friend Corrie Sanders.”

    “He was (a) tremendous fighter inside the ring and a great man outside of it. The world’s boxing fraternity has lost a brother, an ally, and a voice in South Africa,” Lewis said.”

    http://www.sport24.co.za/OtherSport/Corrie-Sanders-was-tremendous-Lennox-Lewis-20120925

  • http://www.ozoneblue.co.za/ ozoneblue

    PdV

    “Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.”

    What do middle class South Africans think about murderous barbarism?

    “We will kill them if they go to work’

    Lucas Ledwaba | Mon, 20 Feb 2012 11:25

    [miningmx.com] — “WE KILLED him!” shouts a man from the back of the crowd. He slides his hand across his cheek to demonstrate how they allegedly sliced off the man’s cheeks with a knife.

    This is Freedom Park, Rustenburg, where an unnamed man was killed last week – apparently by striking mineworkers who suspected that he was trying to sneak back to Impala Mine Shaft 8 to reapply for his job.

    And striking mineworkers say more will die if the 17,000 workers fired last month are not reinstated soon.

    “We are going to wait for them at the bus stop,” shouts another man as a crowd of agitated strikers crowd around the City Press team in an open field in Freedom Park; a windswept, desolate settlement of RDP houses and shiny zinc shacks where most of the 17,000 axed miners live as backyard tenants.

    “Every morning you will find dead bodies because we are going to kill them! If they try to go to work they will die! They are still going to die!” seethes another.

    The workers have gathered in the open field next to the railway line separating the settlement from Shaft 8 since morning.

    The night before, bands of men armed with clubs tried to storm the mine hostel, but were repelled by mine security guards and police in armoured cars.”

    http://www.miningmx.com/news/platinum_group_metals/We-will-kill-them-if-they-go-to-work.htm

    How about the Constitution?

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Lisbeth
    September 25, 2012 at 18:24 pm

    Hey Lisbeth,

    “That said, it is a most inauspicious time in the present dismal world economic climate to harp on strikers’ rights. Elsewhere in the world, workers are having to accept pay cuts in order not to become unemployed.”

    Well spotted.

    Even Mitt Romney agrees with you. Sort of. Not directly. In a round-about way – whatever Romney says is probably wrong. So you’re more likely to be right than he is. I hope it’s clear :P

    Though he didn’t have much good to say about teachers unions, Mitt Romney told an education forum Tuesday that teachers do have the right to walk off the job.

    Speaking at an education summit sponsored by NBC News, Romney said that he wouldn’t stand in the way of teachers engaging in an organized work stoppage, as they recently did in Chicago.

    “I don’t know that I would prevent teachers from being able to strike,” Romney said. “Allowing them to strike on matters such as compensation is a right that exists in this country,” he said in response to a question from host Brian Williams.

    http://2012.talkingpointsmemo.com/2012/09/mitt-romney-teachers-strike.php

  • Cicero Langa

    Crazy lefty Yacoob does it again.

    The point of departure in interpreting any act should be the words in the Act – not the ideological slant of the interpreter.

  • Brett Nortje

    ozoneblue says:
    September 25, 2012 at 18:54 pm

    ANother union crime, never to be solved.

    No perpetrator caught tried, convicted and locked up to bring closure to the victim’s family.

    ‘Affirmative action’ and ‘transformation’ chickens coming home to roost in the NPA, and the SAPS.

    Justice – ANC style.

  • sirjay jonson

    Well it really comes down to something really simple. Anyone has the right to strike.

  • Mikhail Dworkin Fassbinder

    Can one take Pierre’s position he takes here and his argument seriously ?

    Some doubts.

    Let us remind ourselves that Pierre is some type of moral nihilist who thinks that there are no moral facts and no moral truths. But in that case it is not clear what he means by saying that we face “…very real and serious larger ethical challenges faced by any middle class person in South Africa …” and that existence of these challenges trumps narcissistic self concern Vice recommends.

    Why is inequality , oppression and so on which exist in SA and are faced by many fellow South Africans evils or moral challenges ? Calling inequality moral challenge implies that it is true that inequality is wrong and that we it is true that we have moral duty to reduce or at least try to reduce it.

    The problem is that nihilists like Pierre de Vos do not think that it is true that inequality is wrong because they dont think there are such moral truths. This is the whole point about their metaethics .

    Apart from the obvious question which is whether this sort of view is coherent and whether it makes sense ( and there are some serious doubts of course ) we should ask whether the criticism Pierre is making of Samantha Vice’s position regarding whiteness can be taken seriously since it is put forward by someone who doesnt take morality seriously and who recons that we need to adopt an ironic attitude towards oppression and other moral wrongness more generally.

    The issue is that if this is so then I cannot accept that inequality is wrong since I ( assuming I am Pierre ) dont think the judgement ‘inequality is wrong’ is true since I dont believe as a nihilist that there are moral facts which would make such judgements true. This is after all what grounds my ironic stance. But as should be obvious this is problematic because it is not clear why such moral challenges are indeed challenges on this view.

    The criticism of Samantha Vice then has to break down because it makes sense/ has force only if the serious challenges Pierre is talking about are real ( and he of course is committed to thinking that they are not real ) because it is only then that the position Vice recommends is or involves narcissism.

    Thanks

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    September 25, 2012 at 21:29 pm

    FAKE!

    What have you done with our Dworky?

    How much ransom do you want to return him (or it) alive (or dead)???

    p.s. Zdenekv, we know it’s you in a nifty disguise!

  • http://www.ozoneblue.co.za/ ozoneblue

    sirjay jonson
    September 25, 2012 at 21:23 pm

    “Well it really comes down to something really simple. Anyone has the right to strike.”

    Correct.

    But no one has the right to kill for any cause or to instigate violence to achieve political goals – not in a democracy.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Cicero Langa
    September 25, 2012 at 19:07 pm

    Well spotted CL,

    “Crazy lefty Yacoob does it again.

    The point of departure in interpreting any act should be the words in the Act – not the ideological slant of the interpreter.”

    Parting gift?

  • Cicero Langa

    Can we please have a post on how the consitutional COURT, is actually not a COURT, in the sense that it is an impartial and objective arbiter of disputes, but it is more of a soup kitchen. Or a Robin Hood. Also, address those nasty naysayers who believe that the “judgments” the “court” makes, should not be made by someone who does not have the foggiest about economic incentives, fleeing capital, etc etc.

  • Cicero Langa

    And Maggs, you’re too clever for me. I cannot tell whether you’re being sincere or not. Shove it, either way.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    So, with Heritage Day 2012 now behind us, it is time to resolve that tomorrow we will reclaim and take ownership of all the parts of our heritage, including the ANC. We should appeal to the overwhelming majority of honest members in the ANC – and the public service — to make their voices heard, and promise them our support as a society. For at this point, there is no other party capable of re-establishing a common purpose and programme that is able to transform South Africa, and create an country that is inclusive, values all its citizens and brings dignity to our workplaces, schools, hospitals and communities.

    http://dailymaverick.co.za/opinionista/2012-09-25-whose-anc-is-it-anyway

  • Brett Nortje

    The ANC is truly revolting.

    Imagine wanting to be part of an organisation whose youngsters tell each other that the first step on the road to riches is killing their branch chairman?

    FFS. Where do you people come from? How do you find others like you?

  • Brett Nortje

    Venerated?

    Please, Mark Heywood. Malapropism. The word is ‘venereal’.

  • http://www.ozoneblue.co.za/ ozoneblue

    Brett Nortje
    September 26, 2012 at 8:01 am

    “Imagine wanting to be part of an organisation whose youngsters tell each other that the first step on the road to riches is killing their branch chairman?”

    Just ask Pierre. Killing and inciting others to kill is an important ingredient of the constitutional democracy. The old fashioned, middle class obsession with believing you can/should vote for somebody else next election is just a load of Whitish bs.

  • mhlongo

    What are my black brothers in the minority doing? Preserving the interests of white capital are we now? Skweyiya, Mogoeng and Jaftha you forget where you come from gentlemen (working class households). As for my sister Maya, undiphoxile ntombi.

    Well I guess the hopes of the working class lie in the shoulders of Yacoob and the progressive spirit of Cameron.

    Ewe, in Cameron we trust.

  • Cicero Langa

    @Mhlongo

    You seem to understand.

    Please explain how “progressive spirit” and objective arbiter fits. Does this progressive spirit look out for a predestined few?

    And also, is the progressive spirit, much like the Holy Ghost, omniscient? In other words, does it take into account the long-term economic effects prior to it possessing someone or does it stricly follow a “eat now and we’ll worry about growing the economy and such other evil fings later” approach?

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    mhlongo
    September 26, 2012 at 11:59 am

    Nicely put Mhlongo.

    A counter-revolutionary minority, with “that tendency” of putting words into the mouths of parliament which were probably not intended is a worrisome prospect especially given that some of our finest judges are on their way out.

    With the JSC having become the shambles which it now is, Zuma might as well be writing (or dictating) judgements for the foreseeable future.

    Ours is soon to be the Constitutional Court that was …

    Thank god!

  • Brett Nortje

    It is not nicely put, my dear Maggs. As an archer and bowhunter I have to tell you that mhlongo’s arrow flew off after glancing off the butt.

    Your ‘out in the cold’ chirp in the next blog is a more accurate characterisation.

    My gut feel: This is the quintessential home-town decision from the Minority of our highest court.

    Moegoe Moegoe and the other deployed cadres are telling workers if they’re not Cosatu members they better enjoy it out in the cold. To go cry to someone who cares.

    Wanna hear what they’re gonna say to members of AMCU?

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Brett Nortje
    September 26, 2012 at 21:27 pm

    Hey G,

    It seems that we’re saying the same thing!

  • Brett Nortje

    Yebo, dude.

    What ideas do you have concerning what is to be done about the NPA?

    From the Three Amigos to the gang violence in the Flats they have let this country down terribly.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Brett Nortje
    September 26, 2012 at 21:40 pm

    G,

    “What ideas do you have concerning what is to be done about the NPA?”

    ZUMA MUST GO!!!!!!!!!!!!!

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    And just in case that was not clear enough …

    ZUMA MUST GO!!!!

  • etienne marais

    I would be really interested to know how these judges “form” their alliances; do they have a post-arguments conference, where they discuss the different approaches to the matter at hand, and then pair off into meeting-of-minds cliques, or is the whole process more covert than that?

  • Bhagat

    The minority are a disgrace to the Court. They are mute. They don’t ask a single question. They make Justice Clarence Thomas look like a genius!

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Well, well, well – waddya know. CJ Moegeng agrees!!!!!!

    Maybe there is a god after all. :evil:

    IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

    Print Media South Africa and Another v Minister of Home Affairs and Another

    In a majority judgment delivered by Skweyiya J, the Constitutional Court held that the requirement that there must be administrative prior classification before publication limited the right to freedom of expression, vital to a democracy. …

  • http://www.wardlecollegeoflaw.co.za Brenda Wardle

    Interesting to see how certain processes which invariably lead to illogical consequences are celebrated by those who understand not what their impact will be. Constitutional interpretation reduced to a subjective judgment satisfying and suitable to the author(s) until by sheer accident he, she or they are exposed to in-depth knowledge on a subject as vibrant as life itself, and crippled by humans who saddle under the yoke of bias and shallow reasoning, is unacceptable. Interpretation of Statutes (capitalized for effect), must be the most challenging module in legal education, ‘the Cinderella of Law”, not to be likened with or compared to cursory arguments formed to transform obiter dicta in rationes decidendii. The decision had absolutely nothing to do with with the imbalance in economic power but the expression or notice by the one affecting the exercise of a recourse by another. Elevate the rights of minority trade unions by all means, allow individuals on strike to advise of their intentions to sympathize but do not imply that workers, by virtue of them having weaker bargaining power economically, cannot responsibly formulate their arguments or intentions. That’s just me!

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