Constitutional Hill

The Free Market Foundation’s quixotic venture

The announcement by the Free Market Foundation (FMF) that it will challenge the constitutionality of certain collective bargaining rules, suggest that the organisation has a lot of money to waste. In a constitutional democracy, the temptation to rush to the courts in the hope of advancing your partisan policy agenda will always be high. Why try to win policy arguments when you can take a short-cut via the courts? But unless you understand the broad socio-political commitments embodied by the Constitution as interpreted by the Constitutional Court (an understanding the FMF and its lawyers seem to lack) you run the risk of wasting your money on expensive litigation which you have no hope of winning.

Earlier this week the FMF announced that it would challenge the constitutionality of certain aspects of section 32 of the Labour Relations Act, arguing that this was a “draconian” provision as it allowed collective agreements to be binding on third parties within a sector. Collective agreements are concluded in bargaining councils where representatives of unions and employers reach agreement on wages and working conditions for workers in that sector.

Section 32 of the Act allows the Minister to order that a collective bargaining agreement concluded in the bargaining council be binding on all employers and workers in that sector – even if the employers or workers were not directly or indirectly a party to the agreement. If the Minister extends a collective bargaining agreement, an employer cannot employ workers in that sector at a lower wage or with fewer benefits than that agreed upon at the bargaining council – even when that employer was not part of the bargaining process. This rule provides an incentive for employers to engage in collective bargaining processes and protects workers who, through sheer chance, might not work for an employer covered by the collective bargaining agreement.

The FMF argues that the extension of such agreements “create unemployment and uncompetitive conditions in product markets”. By setting wage levels (and broader labour costs) above what some companies would pay and some employees would accept, it can make it unprofitable for certain types of firms to operate. According to the FMF, it is mostly smaller and more labour intensive firms, where wages are generally lower, where these extensions bite.

Personally, I am a bit skeptical of the ideologically driven claims by people whose business it is to exploit others and make as large a profit as possible (and are often handsomely rewarded for their efforts), that they are on the verge of bankruptcy because the law does not allow them to exploit their labour force as much as “market forces” might allow them to. However, I will leave aside for the moment the question about whether these claims are true and examine the legal aspects of this court action.

It is unclear what section of the Bill of Rights the FMF is relying on in its constitutional challenge of section 32 of the Labour Relations Act. (I have been unable to get access to their court papers.) Could it hope to invoke section 22 of the Bill of Rights, which guarantees for every citizen the right to choose their trade, occupation or profession freely, subject to regulation by law?

If it is pinning its hopes on this section the FMF is barking up the wrong tree. I cannot imagine that the Constitutional Court will ever find that labour regulations which may or may not make it more difficult for an employer to employ more staff would limit the rights of a citizen freely to choose an occupation. Even if it was true that section 32 inhibited the ardent and unbridled accumulation of wealth by the capitalist class, this section does not stop anyone from choosing any occupation they see fit.

As far as I know, there is no right to make a profit enshrined in the Constitution. Neither does the Constitution guarantees for everyone the right to work or to be employed. However, section 23 of the Bill of Rights does guarantee for everyone the right to a fair labour practice, which includes the right to engage in collective bargaining.

What the FMF is aiming to do is to attack a provision of the Labour Relations Act aimed at providing a framework within which more effective collective bargaining can take place. Section 32 of the Labour Relations Act can therefore be viewed as helping to give effect to the constitutionally guaranteed right to a fair labour practice. How it will ever convince the Constitutional Court that this provision infringes on the constitutional rights of any person to work for a wage far below the wage collectively agreed upon for that sector is beyond my comprehension.

Even if there was a right that was being infringed here – something that seems hard to imagine – the Constitutional Court will almost certainly find that the infringement constituted a justifiable limitation of the right in terms of section 36 of the Constitution. This is because any limitation would be aimed at giving effect to another constitutional right to effective collective bargaining. A study of section 32 of the Labour Relations Act makes this crystal clear as it provides several safeguards to prevent the abuse of this section.

First, the Minister can only extend the binding force of a collective agreement if the members of the majority trade union vote in favour of the extension and if the employers’ organisations, whose members employ the majority of the employees that are party to the bargaining council, vote in favour of the extension.

Second, a collective agreement may not be made biding on others who were not party to the negotiations and agreement unless the majority of all the employees who will be bound by the extended collective are members of the trade unions that are parties to the bargaining council and if the employers’ organisations who are parties to the bargaining council agreement will employ the majority of all the employees who are bound by the extended collective agreement.

Third, the Section also prevents the Minister from extending the agreement to other workers and employers in a sector if the parties to the bargaining council are not sufficiently representative within the registered scope of the bargaining council; and if the Minister is satisfied that failure to extend the agreement may undermine collective bargaining at sectorial level or in the public service as a whole.

There might be a few eccentric judges out there (free market fundamentalist judges like Nigel Willis come to mind) who might be willing to entertain such frivolous arguments. But given the long line of Constitutional Court judgments affirming the transformative nature of the South African Constitution and given the firm commitment in section 23 of the Constitution to collective bargaining, it is difficult to see how the Constitutional Court will declare invalid legal rules aimed at making collective bargaining agreements more effective.

As far as I can tell, the FMF is really not making a constitutional argument at all. It is aggrieved by the policy choices made by the legislature, policy choices aimed at protecting collective bargaining agreements as well as those workers who happen not to be immediately bound by such agreements. Now, you may well disagree with such policy choices and you may argue – as I am sure the FMF would do – that workers do not deserve this protection from exploitation as it detracts from the ability of business owners to employ non-unionised workers at whatever rate they are willing to be exploited at. But how this argument can be fitted into a constitutional straightjacket is not immediately clear.

If you believe that collective bargaining agreements in a sector help to protect employees who might not be unionised or might work for an unscrupulous employer, then the provisions of section 32 make perfect sense as it bolsters the right to collective bargaining set out in section 23, extending the benefits of collective bargaining beyond the parties who happen to be covered by the original agreement.

It seems to me that the FMF knows that it will never be able to convince the government to change the law and is now turning to the courts for assistance. If it was better advised it would not have wasted its money on such a quixotic venture.

  • Gwebecimele

    Brilliant piece PdV.

    The most embarrasing part is Mashaba allowing himself to be the face of this joyride.

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

    Important post. If it was not for the principle of collective bargaining it would mean those companies who could exploit labour would be at an advantage leading to further exploitation since market forces would be driving the cost of labour down.

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Why don’t you investigate the R40 000 ‘deducted’ from pipefitters at Medupi – their payslips show their monthly salary is R52 000, their take-home pay is R12 000? (And I will bet I can weld better than most of them….)

    Who is skimming off the difference?

  • Zulani

    @ Brett Nortje
    NO NO NO. Your figures must be wrong.

  • joeslis

    “… leading to further exploitation since market forces would be driving the cost of labour down”

    What some people don’t seem to get is that labour costs in South Africa are too high. That’s why South Africa can’t compete with the rest of the world when it comes to exports. Besides, if people feel exploited they are free to go and do nothing.

  • Gwebecimele
  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Didn’t you watch Carte Blanche, Zulani?

    Medupi was originally budgeted for at R32bn by Escom and costs overruns are at 400% already with completion being anytime in the future thanks it appears to building the boilers being subcontracted to the ANC.

    I – as a weekend welder – know more about heat treatment than the people welding those boilers, it seems.

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    If you thought the IDC’s spotting Cde Parks’ wife some cash to play the tables was dodgy here the IDC rises to new heights:

    http://www.witness.co.za/index.php?showcontent&global%5B_id%5D=91986

    Nkandla contractor liquidated owing R175 000
    30 Nov 2012
    Jonathan Erasmus

    THE main contractor upgrading President Jacob Zuma’s Nkandla residence is being liquidated for owing R175 000 — despite earning a fortune from government contracts.

    Bonelena Construction, Enterprise and Projects secured two major deals worth R100 million in connection with the R240 million presidential security upgrade alone.

    It is now being liquidated for failing to pay for the vans and trucks it rented from the Durban branch of Reebib Rentals. Reebib is part of the Avis Group.

    The liquidator is Pietermaritzburg-based Berrange Incorporated.

    Bonelena is owned by Pietermaritzburg resident Thandeka Nene.

    The Witness has also learnt that the Independent Development Corporation (IDC), Bonelena’s largest funder, is also seeking its slice in the liquidation order as they no longer see the company as a profitable entity. Attempts to further question the IDC on this point proved unsuccessful.

    A search revealed that Nene has secured contracts from the KZN Department of Education, Department of Transport and Department of Public Works from 2007 to build schools, roads and new facilities at hospitals.

    Yesterday, The Witness revealed that a man claiming to be a relative of the president, Vincent Zuma, was also seeking money owed to him by Bonelena.

    Zuma said he was awarded a R16 million sub-contract by Bonelena in June 2011 to complete the roads within the Nkandla security complex.

    He claimed he only ever received R138 000 and never received his site establishment fee of R2 million, forcing him to leave the site in less than six months due to rising debt.

    Zuma said yesterday he first met Nene in Inanda, Durban, where he did work for her at a primary school two years ago.
    “Even on this contract I battled to get my money out of her.
    “They only ever paid me in small amounts over a period of months,” said Zuma.

    The Witness can confirm that in June a company called Incledon DPI, a subsidiary of DPI Plastics, which is a supplier of PVC piping, was awarded a sale in execution by the Pietermaritzburg high court against Bonelena.

    Items that were to be auctioned included office furniture, computers, copy machines, and kitchen appliances. It is unclear if the auction took place however according to the firm representing Incledon, GDLK Attorneys, the file has been closed.

    Nene has claimed through the press in recent weeks that her company’s financial problems stem from the fact that the department has yet to pay them.

    Questions sent to Bonelena for Nene’s attention via email and sms yesterday asking for further clarity on just how much they had been paid for their work on Prestige Project A, clarification on whether the company is being liquidating, if they would seek legal action against DPW and whether they had completed their work at the Nkandla security complex were not responded too.

    To seek clarity on liquidation consulting independent attorney, Yolanda Gielink said if a company cannot pay its debt, it may be liquidated of its own accord or by way of application by the creditors.

    The process of an application for liquidation of a company appears to expedite the process of debt recovery,” said Getlink.

    She said it is not uncommon for business person to keep their personal assets separate from the juristic entities their businesses operate under.
    “This practice however does not however safeguard the personal assets 100%, as acquisition and dispossession of assets, if investigated, may still be attached if found to have been made in anticipation of liquidation,” said Getlink.

    Public Works said it would not comment on whether Bonelena had been paid for work completed because the presidential compound was protected as a “National Key Point”.

    Siboniso Soni, who identified himself as Nene’s spokesperson, failed to respond to several requests for comment.

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    See, today the Industrial Development Corporation bailed this former SADTU member now friend of Zuma out with a nice cash injection.

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

    Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?
    March 7, 2013 at 19:23 pm

    “I – as a weekend welder – know more about heat treatment than the people welding those boilers, it seems.”

    I know it is really frightening. It is amazing that there are seemingly intelligent people who think you can just push anybody who is of the right color to do a job and it won’t make a difference. But it does.

    “Public Enterprises Minister Malusi Gigaba said on Wednesday that he was aware of urgent problems that had arisen due to the nonperformance of contractors. Ministerial spokesman Mayihlome Tshwete said: “The minister is aware of concerns in relation to Medupi that need to be addressed as soon as possible.

    “These issues do not pertain to one contractor alone. The minister is monitoring the situation and is going to act decisively.”"

    And this I see happening everywhere. And you know it is not the minister’s fault, nor insane government employment policies, it is those darn BEE contractors who are at fault although they are appointed by government with little or no experience and then dictated to by government on who they must hire to do the job.

  • Shamwari

    Which clause in the constitution guarantees one the freedom to conduct economic activity ?

    Try that one PdV.

  • Terry

    Quite amazing what a just a little bit of actual research can do Mr. De Vos, or are you so blinded by your rabid hatred of free enterprise that you can no longer read?

    http://www.freemarketfoundation.com/about/press-room

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    The scale of corruption and maladministration is huge – in the case of Medupi alone R100bn. Just pissed away. It adds up. And the ANC has plans for massive infrastructure expansion. Like Medupi. SARS’ revenue started falling rapidly the end of last year because of ‘labour unrest’. The ANC has started borrowing to cover expenditure. The markets have noticed which means the Rand is falling. Which means the petrol price will go up again. Of which 45% goes to tax.

    And Jannie Jammergat over there can’t see it is an unfair labour practice to subject small business to agreements they did not consent to. Of course, that shows how strong his belief in contractual freedom is….

    Hey, did you see how the Reds have misappropriated the word ‘gatekeeper’?

    Ozoneblue says:
    March 7, 2013 at 19:58 pm

  • Maggs Naidu – Towards a DUTY-FREE Cabinet! (maggsnaidu@hotmail.com)

    Terry
    March 7, 2013 at 22:28 pm

    Terry,

    “Quite amazing what a just a little bit of actual research can do Mr. De Vos, or are you so blinded by your rabid hatred of free enterprise that you can no longer read?”

    Well said Terry – you are quite the genius. De Vos needs some Free-market edification.

    Even Greenspan said “After 40 years of advocating that markets self regulate, I now have the proof that it does. I was not mistaken. Thank god”!

    What do you say to that, eh?

  • Gwebecimele

    http://mg.co.za/multimedia/2013-03-07-the-forgotten-schools-of-the-eastern-cape

    These schools and other mud schools elsewhere will be equipped with “Biometric Attendance System”

  • Gwebecimele

    http://www.moneyweb.co.za/moneyweb-technology-news/reaction-to-dstv-increase-shows-consumer-apathy

    Will the constitution save us from these 9 x inflation increases by these private monopolies.??

  • Alibama

    One doesn’t know if this absurdity is just toungue-in-cheek ?
    | Personally, I am a bit skeptical of the ideologically driven claims by
    | people whose business it is to exploit others and make as large a profit
    | as possible (and are often handsomely rewarded for their efforts), that
    | they are on the verge of bankruptcy because the law does not allow them
    | to exploit their labour force as much as “market forces” might allow them
    | to. However, I will leave aside for the moment the question about whether
    | these claims are true and examine the legal aspects of this court action.

    If you ever need PROOF of how free markets work, just USE the ‘za Taxi industry’

    }through sheer chance, might not work for an employer covered by the collective
    } bargaining agreement.

    You’ll NEVER find by sheer chance ‘the water level at one part of the lake
    is lower/higher than the rest, for the simple fact of FLOW-EQUALISATION.
    If you don’t understand hydraulics/economics, stick to law.

    }.. this section does not stop anyone from choosing any occupation they see fit.
    Good thinking, that’s how free enterprise works!!
    —-
    }Section 32 of the Labour Relations Act can therefore be viewed as helping to give
    }effect to the constitutionally guaranteed right to a fair labour practice.
    —-
    Is it a bad day for you Prof, or are you just testing us?
    “Can be viewed” ?! That’s very sloppy. Define ‘fair’, other than transparent,
    ie. not deceptive.

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

    Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?
    March 7, 2013 at 23:04 pm

    “Hey, did you see how the Reds have misappropriated the word ‘gatekeeper’?”

    Brett. For the monotheist amongst there is only ONE struggle worth fighting, and that is the CLASS struggle. And our enemy is MULTIRACIAL MONOPOLY CAPITAL.

    Stop bowing down ro so many gods!

    Aluta continua!

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

    For the monotheist amongst us…

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    No, really! We all know ‘gatekeeper’ is used in the sense of Cosatu ‘gatekeeping’ who gets jobs/not to keep the unit price of labour up?

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Er, Gwebecimele, who decided MNet could go into competition with itself despite the obvious need for competition?

    Jay Naidoo, that’s who!

    See how many changes there have been in its ‘conditions’?

    First no advertising then some advertising at the end of shows then once the camel had his nose under the tent?

    Boom! Infomercials.

  • http://www.fundinetwork.org.za Peter

    Just as we are committed to protecting workers we should be committed to protecting those that can not find work. In the absence of comprehensive social welfare for ALL unemployed citizens is it justifiable to prevent employers from creating jobs even if they don’t pay the bargaining council minimum wage?

    Looking at the question from the perspective of the millions of people that are on the outside looking in and for whom society is reluctant to make any provision you may reach a different perspective.

  • http://www.fundinetwork.org.za Peter

    conclusion not perspective

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

    Peter
    March 8, 2013 at 8:14 am

    “Just as we are committed to protecting workers we should be committed to protecting those that can not find work. In the absence of comprehensive social welfare for ALL unemployed citizens is it justifiable to prevent employers from creating jobs even if they don’t pay the bargaining council minimum wage? Looking at the question from the perspective of the millions of people that are on the outside looking in and for whom society is reluctant to make any provision you may reach a different perspective.”

    Peter/FMF. That is a wilfully misleading argument. According to your argument we can employ everybody in SA even when we pay them 50 cents a month, what we call a slave wage, just enough to keep the slaves alive. I would argue slavery is a a more sustainable system, there at least the slave don’t suffer the painful illusion of freedom.

    Is that what MULTIRACIAL MONOPOLY CAPITAL really want, society’s problem solved then?

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

    Gwebecimele
    March 8, 2013 at 7:16 am

    gwebbs. The funny part is that “the consumers” are so quiet because they can easily fork out another 100 bucks or so for DSTV. But for a vast majority of working class people’s that is a huge amount of money, perhaps the difference between live and death.

  • Pierre De Vos

    Shamwari, err, no, you are confusing the Interim Constitution with the Final Constitution. The latter (unlike Interim Constitution) does not contain a right to free economic activity.

  • http://www.fundinetwork.org.za Peter

    Ozoneblue

    The difference between life and death can be 50c

  • Gwebecimele

    Is this not a common law wife(with all the benefits/rights), media got it all wrong???

    http://www.iol.co.za/news/crime-courts/mbeki-fights-ex-lover-about-house-report-1.1482977

  • Maggs Naidu – Towards a DUTY-FREE Cabinet! (maggsnaidu@hotmail.com)

    So if the FMF had it’s way, Eskom could charge what the heck it likes for electricity; e-Tolls could be stuck wherever SANRAL felt like doing so at any rate it wanted; government could arbitrarily decide what taxes it wanted to levy; municipal rates too; unregulated “termination rates” for cell phones; uncontrolled medicine prices; traffic authorities could randomly decide traffic fines; …

    Sorry FMF – you sound CUCKOO.

    p.s. just kidding about being sorry – you guys are cuckoo!

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Well done, Thulas! That job is not worth your good name.

    Now make sure there are consequences for those who took food out peoples’ mouths….

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=362987&sn=Detail&pid=71616

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Maggs, go fetch your brain cell – you’ve left it at home.

    Escom and Sanral are parastatals – Escom’s main problem is a lack of competition.

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?
    March 8, 2013 at 9:15 am

    Hey G,

    “Escom and Sanral are parastatals – Escom’s main problem is a lack of competition.”

    So what?

    Everyone should be allowed to put up roads and power generation!

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    I agree 100%.

    I already have an exercise bicycle connected to a generator connected to an inverter connected to a battery pack.

    Will you come and pedal my bicycle?

  • Gwebecimele

    Is this not a “technical divorce”, should the identity of the parties involved be disclosed by media??

    http://mg.co.za/article/2013-03-08-00-bitter-tussle-over-moeletsi-mansion

  • Gwebecimele

    Vavi’s real threat lies outside the ANC.

    http://www.dailymaverick.co.za/article/2013-03-08-numsa-ready-for-war-over-national-development-plan-and-vavi/

    “Cosatu announced – even before the 2012 ANC national conference, where the NDP was adopted – that it had filed a section 77 notice to strike, in order to agitate for policies based on the Freedom Charter. Amongst its list of demands is the nationalisation of the banking, petrochemicals, forestry, cement, metals fabrication, construction, pharmaceuticals, telecommunications and mining industries.”

  • Oupoot

    Indeed, I can see this case becoming crucial in defining whether judicial persons have the same rights under the constitution as natural persons, similar to some extent to the Citizens United case in the US Supreme Court a few years ago that unleashed corporate support for political campaigns.

  • Graham

    That S23 of the bill of rights has a collective bargaining provision is indicative of how poor in many respects this much-vaunted constitutional construct actually is. This was because of the undue marxist influence of the ANC/SACP/Cosatu axis being brought to bear during Codesa. This enabling aspect is one thing, but it does not necessarily mean that extension to non-participants by the Labour Relations Act is constitutionally sound or automatically constitutionally sanctioned.
    But the most serious indictment of this constitutional flaw is that it is in direct conflict with the provisions of the competition act: collective bargaining is by definition a collusive practice and is illegal in terms of this act. One wonders why the act has not been declared unconstitutional or amended, or rather that this grotesque bill of rights provision was allowed in the first place, seeing that competition law predates the constitution by a long way. If manufacturers, sellers, or farmers collude on price fixing, this is a criminal offence. Collective bargaining is nothing more than price fixing from the other end.
    Although Leon Louw and his FMF is (or has been) an unabashed apologist and agent for the tobacco industry and big pharma doesn’t mean that he doesn’t have a case in this instance. It is an absolute shocker that parties can be forced to be unwitting participants in a contractual situation not of their making.
    As for exploitation, as odious as this may well be, capitalists have an inalienable right to be greedy, to maximise profits, to say “fuck the poor”, or whatever. They are also voters, taxpayers and citizens with the same rights as everybody else. Being in poor taste doesn’t make it illegal. The only thing worse than being exploited is not being exploited. Ask the poor guy sitting on the pavement.
    So, Pierre, I wouldn’t be so sure about the outcome. Louw et al can lose the case if marxism-inclined deployees on the cc hold sway.

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?
    March 8, 2013 at 9:33 am

    Brett,

    “Will you come and pedal my bicycle?”

    Under normal circumstances I would have been glad to assist.

    But with your “free market” approach to lewd suggestions, I think I will decline your invite.

    Dmwangi will probably volunteer – he has an appreciation for the offers you made!

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Maggs, you ninny, how can you conjure up any kind of innuendo from that?

    You’re simply the closest thing I have to a hamster….

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Graham, that is how I’ve seen it for a long time.

    It goes to the heart of the equal protections clause.

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?
    March 8, 2013 at 15:46 pm

    Brett,

    “Maggs, you ninny, how can you conjure up any kind of innuendo from that?”

    Ok – my bad.

    Dmwangi is probably between airports, IMPRESSING WHITE people.

    Try OB!

    :P

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Mwangi has planted the seeds of an idea, though. You might make a fine manservant. A gentleman’s gentleman.

    Lets have a couple of practice ‘Sahib!’s?

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?
    March 8, 2013 at 16:11 pm

    G,

    Why did god make WHITE people from mud?

  • joeslis

    Maggs

    “Why did god make WHITE people from mud?”

    Actually, WHITE people evolved from BLACK people.

    Say, when did you become a god-botherer? I liked you better before.

  • joeslis

    Anyone have any idea how many CC judges are “marxism-inclined deployees”?

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    joeslis
    March 8, 2013 at 18:44 pm

    Hey Joeslis

    “Say, when did you become a god-botherer?”

    I’d like to think of myself as a Brett-botherer.

    Re my new found theist-self – I stumble on the revelation.

    WHITE people (Brett, OB, Dmwangi, mike, Rajbansi and a few others) could not have been created by evolution – successful genes, species refinement etc.

    And then dark one night, when all was silent, it came to me (I wasn’t drunk, ok maybe just a wee a bit) – god, with a warped sense of humour, is responsible for the freak-show.

    Now that I’ve bridged the evolution-creation chasm, I should be in line for some kind of award even though I have not worked out why god made WHITE people’s souls from mud!

    p.s. I also do some prayers for the needy – let me know when you need free-spiritual counseling but send money first!

  • joeslis

    Maggs

    “… god made WHITE people’s souls from mud!”

    WHITE people have SOULS?

    “… send money first!”

    OK, let’s have your banking details …

  • Maggs Naidu – Joeslis is a nullifidian! (maggsnaidu@hotmail.com)

    joeslis
    March 8, 2013 at 20:29 pm

    Eish Joe Guy

    “WHITE people have SOULS?”

    For your sins and spiritual redemption chant this rapidly in bursts of 10, while walking up and down the busy passageways of Sandton City.

    “WHITE people : ARE souls”
    “WHITE people : ARE souls”
    “WHITE people : ARE souls”
    “WHITE people : ARE souls”
    “WHITE people : ARE souls”
    “WHITE people : ARE souls”
    “WHITE people : ARE souls”
    “WHITE people : ARE souls”
    “WHITE people : ARE souls”
    “WHITE people : ARE souls”

    Satanists will stare at you angrily while some may even attack you – ignore them. Wear a large wooden cross to protect you from evil.

  • Maggs Naidu – Joeslis is a nullifidian! (maggsnaidu@hotmail.com)

    And the free market strikes again!

    Johannesburg – A South African Airways crew member was arrested at the OR Tambo International airport on Friday for allegedly trafficking drugs from Sao Paulo, Brazil into the country, the Hawks said on Friday.

    http://www.iol.co.za/news/crime-courts/saa-crew-member-caught-with-drugs-1.1483519

  • Mikhail Dworkin Fassbinder

    @ Maggs

    With respect, your metaphysical rantings about WHITE souls are both incomprehensible and besides the point. What I want to know is what you say about the plan to embalm the body of Colonel Chavez for permanent public display in Caracas. And whether you think this could represent a precedent for one day STUFFING Mr Zuma and storing him in a glass cabinet at Nkandla!

    Thanks.

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    March 9, 2013 at 3:02 am

    Dworky,

    Zuma beat us all.

    He STUFFED us pretty good!

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    WHere is Chavez different from any other personality cultist socialist leader?

    (Althought I will acknowledge there will probably be fewer bad self-destructive decisions from the crypt…)

    Mikhail Dworkin Fassbinder says:
    March 9, 2013 at 3:02 am
    “what you say about the plan to embalm the body of Colonel Chavez for permanent public display in Caracas”

  • Lisbeth

    Brett

    “WHere is Chavez different from any other personality cultist socialist leader?”

    Chávez was no run-of-the-mill dictator. What he was, more than anything, was an illusionist – a showman who used his prodigious powers of persuasion to present a corrupt autocracy fuelled by petrodollars as a socialist utopia in the making. The show now over, he leaves a hollowed-out country crippled by poverty, violence and crime.

    Venezuela is now all but a basket case: corruption is endemic, investment is non-existent and the currency has been devalued five times in ten years. As a result, the country’s infrastructure is falling to pieces, its public hospitals are death-traps and Caracas has become a city of slums with one of the highest crime rates in the world. Meanwhile, a vast black market is flourishing, policed by armies of malandros with a finger in every pie from the pettiest local racket to international organised crime.

    So much for the revolution.

    (I borrowed heavily from an article which appeared in The Independent. Is this maybe what some people have in mind for the hapless denizens of SA?)

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Black OBS and white Vuyo aren’t going to like you a bit….

  • Mikhail Dworkin Fassbinder

    Lisbeth, Colonel Chavez at least stood up again the force of US IMPERIALISM. Like him, we in South Africa should be standing in solidarity at this moment with Belarus, Syria, Cuba, and the Democatic Republic of Korea. And have you forgotten how resolutely Colonel Chavez supported our struggle here in South Africa?

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

    We can see the REAL polemic is still about those type of leaders that are uncompromisingly anti-capitalist and pro-socialists. From Hani to Castro to Chavez. That is why Zezek is so relevant.

    The rest of the “critical theory” is a load of racist USA bollocks, a self-defeating side show.

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Could the real polemic rather be about those types of leaders who fuck their countries up and those who don’t?

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

    Mikhail Dworkin Fassbinder
    March 9, 2013 at 20:58 pm

    “And have you forgotten how resolutely Colonel Chavez supported our struggle here in South Africa?”

    Colonel Chavez would have fixed up South Africa a long, long, long time ago.

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

    “Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?
    March 9, 2013 at 22:20 pm”

    Who killed Chris Hani?

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Lisbeth
    March 9, 2013 at 15:07 pm

    Hey Lisbeth,

    “I borrowed heavily from an article which appeared in The Independent.”

    You must be a WHITE person.

    WHITE people “borrow heavily”

    Black people PLAGIARISE!

  • Gwebecimele
  • Mikhail Dworkin Fassbinder

    The sad passing of Sub-Comandente Chavez is having ripple effects even here in South Africa. I see that Floyd Shavambu, on behalf of Mr Malema, has written a poignant tribute to the man who did so much to TRANSFORM his country!

  • Maggs Naidu – Towards a DUTY-FREE Cabinet! (maggsnaidu@hotmail.com)

    Let them drink beer!

    The SA Local Government Association (Salga) has denied that local government is responsible for water shortages.

    “The responsibility of local government is primarily the distribution of water to consumers,” Salga head Mthobeli Kolisa said in an interview with the Sunday Times .

    He said however that the water had to be obtained from dams and that some areas did not have these, or their facilities were unsuitable.

    Kolisa said it was the national government’s responsibility to maintain dams.

    “Even if there was a functioning infrastructure, there would be no water in the taps because there is no water coming in.”

    http://www.timeslive.co.za/politics/2013/03/10/local-government-not-responsible-for-water-shortages-salga

  • Maggs Naidu – Towards a DUTY-FREE Cabinet! (maggsnaidu@hotmail.com)

    FMF should fight for the rights of sellers to sell and users to use!

    City Press was able to buy illegal horse steroids marketed to local teenagers on the internet via sites like Facebook – even though they can kill humans and are not legal even for animal use in South Africa.

    http://www.citypress.co.za/news/horse-steroids-for-your-kids/

  • Maggs Naidu – Habibo WHITE people are angrists! (maggsnaidu@hotmail.com)

    Hehehe – Pierre is getting lots of scoldings from angry WHITE people!

    Jiminy Cricket ‏@jiminycrickus

    @RomanCabanac @pierredevos Pierre will find any excuse to take a dig at whites because of his self-loathing

    GotterdammerungSA Marcell™ Osama Bin Pascal Ex Unitate Vires EricWest™ Pierre de Vos

    @jiminycrickus @pierredevos maybe not self loathing but his prejudice is becoming more evident this year more than before.

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

    Another victory for democracy in Africa.

    “Mr Kenyatta – son of Kenya’s founding President Jomo Kenyatta and a man who has been ranked as one of its richest citizens – is to stand trial with cabinet secretary Francis Muthaura.

    The pair, both allies of President Kibaki, are accused of crimes against humanity, including murder and persecution.

    Mr Kenyatta wrote on his Facebook page: “My conscience is clear, has been clear and will always remain clear that I am innocent of all the accusations that have been levelled against me.”

    Former Education Minister William Ruto and radio presenter Joshua arap Sang will stand trial in a separate case, as they opposed Mr Kibaki during the 2007 election. Charges against a further two officials were not confirmed by the Hague court.

    More than 1,200 people were killed in weeks of unrest in 2007-8 and some 600,000 people were forced to flee their homes. Many still remain homeless.”

    http://www.bbc.co.uk/news/world-africa-16675268

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

    But no problem – ‘Historic moment’.

    “Western powers welcomed the peaceful vote but avoided mentioning Mr Kenyatta.

    Ahead of the election, the US and the UK had hinted that his election would complicate relations because of the charges of crimes against humanity he faces.

    US Secretary of State John Kerry called the election a “historic moment” and said America would “continue to be a strong friend and ally” of the Kenyan people.

    The British Minister for Africa, Mark Simmonds, urged all sides to show restraint.

    In July Mr Kenyatta is due to go on trial at the International Criminal Court (ICC) in The Hague

    His running mate, William Ruto, also faces similar charges. Both men deny the accusations.”

    http://www.bbc.co.uk/news/world-africa-21729901

  • Dmwangi

    Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)
    March 9, 2013 at 22:26 pm

    “Black people PLAGIARISE!”

    Your true (racist) colours are beginning to show.

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Sjoe! You should rather have stayed away from trenbolone, Maggs!

  • Lisbeth

    Maggs

    “You must be a WHITE person.”

    Sometimes I wonder whether other WHITE persons besides me also get the feeling that we’ve come here from some distant planet.

    It is not a good feeling, Maggs.

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Lisbeth
    March 10, 2013 at 16:01 pm

    Lisbeth,

    God made WHITE people from mud – they did not through the Stargate!

    All WHITE people except Dmwangi – he was made from rat droppings.

  • Lisbeth

    @ Maggs

    “God made WHITE people from mud – they did not through the Stargate!”

    They did not *what* through the Stargate?

    What is it with you and mud these days? Is your name mud?

    Are you a stick-in-the-mud?

    Never mind: here’s mud in your eye!

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Lisbeth
    March 10, 2013 at 18:28 pm

    Lisbeth,

    “They did not *what* through the Stargate”

    Indeed!

    p.s. “here’s mud in your eye!” – that’s so racist.

    You must be WHITE person since only WHITE people can be racist.

    Dworky will explain!

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

    Hey maggs. have you noticed how much Ubuntu some of these “mud people” have?

    “It is worth more than US$430 billion (Dh1.58 trillion) and has never been higher since its creation in 1990. The fund, in which Norway saves its oil and gas revenues from the North Sea, is so big it could pay Dubai’s estimated $80bn debt five times over. It owns more than 1 per cent of the world’s shares, is Europe’s biggest equity investor and has 1.7 per cent of all listed European companies.

    You would not know it, though, by stepping into the office of Mr Slyngstad, the fund’s chief executive. In typical Nordic style, there are few outward signs of wealth — just standard office furniture — while the view from his desk overlooks Oslo’s low-rise rooftops. While Norway might be the world’s fifth-largest oil exporter, there isn’t a skyscraper in sight. Mr Slyngstad is as low-key as his office. He spoke quickly in a low voice during an interview, as if keen to get back to work. He became head of the fund last year and oversees a team of 217 permanent employees. Previously the head of equities for the fund, he joined the central bank in 1998 from the Norwegian insurance company Storebrand. His fund’s assets reached record levels after Mr Slyngstad bought $175bn worth of equities when world stock markets crashed earlier this year.

    “It was good timing,” he says, adding that he does not think the fund will ever reach its current highs. “A few years back, we thought the fund would stop somewhere at that level [of 1 per cent of world stocks]. Since then, oil prices have been consistently higher and, aside from the recent dip, equity markets [have increased in value].” That’s not to say he has always been a businessman. Mr Slyngstad has backpacked around Asia, Latin America and Africa, paying his way by working in Norway for six weeks every year. He retreated to a fisherman’s cabin in the Arctic north of Norway for six months in 1990 to study the work of the German philosophers Martin Heidegger and Georg Wilhelm Friederich Hegel. “It was useful to understand how to handle risks today,” he says.”

    Read more: http://www.thenational.ae/business/norway-wealth-fund-reflects-leaderships-attitudes#ixzz2NAXwmxnx

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

    Meanwhile = lets hope there is going to be another media orgy around this one too. More evil deeds from misogynist, [rugby playing] Afrikaner Calvinist men?

    Six shot while sleeping

    “Mdunge said there were also women in some of the houses, including a 90-year-old. None of them were harmed.”

    http://news.iafrica.com/sa/847187.html

  • Horst

    Terry, I do not believe that PdV was the author of this article – it could rather be P Benjamin or any of the socialist-communist leaning cronies around him at UCT’s labour “laboratory”. P de Vos has no knowledge of the LRA – Benjamin has !

    Alibama, it does not appear to be PdV’s tongue-in-cheek but Benjamin’s serious conviction.

    Graham, if our constitution is any good and counsel for the FMF argues all relevant aspects – in my opinion he must win, since the original Acts of 1924, 1937 and 1956 had no provisions to include the so-called non-parties in the ambit of industrial council jurisdiction nor in the ambit of their agreements. (“non-party” is an unknown expression in the previous LRA’s)
    The contrary situation was only made possible by the unlawful alterations of various definitions (statutes) in the Acts by members of the legal fraternity.
    A good constitution will expose such inconsistencies which were developed over the years into outright fraud.
    This case revolves around many billions of Rands, namely the pension fund contributions of some 14% from the monthly earnings mainly of the non-parties. These funds are controlled in terms of its own constitution and the trustees who are also the representatives of the trade union and employer organisation – namely some of the members of the councils
    But, more about this for another day.

    The following comment will be my self-explanatory submissions to the JSC of 7.2.2013 and should answer many questions you might have.
    It comprises some 8 pages – maybe a bit long for this blog, but nevertheless, enjoy the read.
    (PdV / P Benjamin had it for several weeks with a request to put it in the seminar room – no answer from them).

  • Horst

    Objections regarding the consideration of Adv JJ Gauntlett SC to be appointed a judge of the Constitutional Court

    Cape Town, 7 February 2013

    Dear Members of the Judicial Service Commission,

    My name is Horst Peschkes, (70).
    I am an engineer, educated and trained in Munich, Germany and have been living in Cape Town since 1970.
    Since 1974 I have been operating my own engineering company, named Photocircuit, producing high tech printed circuit boards for the local electronics industry.
    I was able to sell the company and am now in retirement.

    The submissions below are the result of extensive research of many records in the Public domain, spanning the period since 1924 up to the present.
    .
    I shall try to keep this letter as short and as precise as possible, and advise that all reference documentation is at hand, in addition to several detailed explanations and proofs that have been compiled, all of which will be available to you upon request.
    Also please note that the language used in this letter is in part that of the previous Labour Relations Acts (LRA) and might come across somewhat tedious or repetitive.

    Introduction

    This letter explains the correct functioning of the previous LRA as opposed to its incorrect application based on the use and interpretation of three unlawfully altered definitions in the LRA.
    It then shows a short list of some of the persons involved in such alterations of statutes and the occasion it was done and how, in chronological order since 1944.

    As may be seen from the short list below, Mr Gauntlett SC appears as a main actor in this legal drama and appears to be the one person, who was involved in or has made use of all three alterations, obviously to gain a winning argument for his clients.
    It is respectfully submitted that Mr Gauntlett has not shown the respect for the law and the statutes as is required from an officer of the court and is in my opinion not a fit person to be a judge.

    The issues:

    Our previous Industrial Conciliation and Labour Relations Acts of 1924, 1937 and 1956 regulated the jurisdictional limitations of industrial councils and their agreements via a particular principle expressed as a sui generis collocation of the words “undertaking, industry, trade or occupation”.

    The four nouns represent variables which together may be precisely identified when the collocation is referred to as a particular undertaking, industry, trade or occupation or when it is followed or accompanied by determining words.

    Who is or who is not affected by industrial council agreements depends on whether or not an employer and his employees are engaged or employed in such a particular undertaking, industry, trade or occupation to which an industrial council agreement relates.

    The answer to this question reveals itself in each and all those definitions in the Acts, which rely on or contain this collocation. They are mainly the definitions of “agreement”, ”employers’ organisation” and “undertaking, industry, trade or occupation”.

    Generally, an undertaking, industry, trade or occupation specifies an enterprise (undertaking) engaged in its industry with its employees who are employed on specific trades or occupations. The word “undertaking” is meant to mean an enterprise or company – an employer of employees and not an activity or industry.

    A particular undertaking, industry, trade or occupation specifies who the undertakings are, precisely what they do (their industry) and what trades or occupations their employees are employed for.

    A very specific undertaking, industry, trade or occupation for instance is created at the time of the formation of an industrial council. It is specific since it only contains some or all the members of the employers’ organisation (with registered interests which are the industries their members are engaged in) and some or all their employees who are members of the trade unions (with registered interests being the trades or occupations their members represent).

    Another simple example is the formation of an industrial council by one employer (if the Minister/Registrar approves) and any registered trade union. The resulting industrial council consists of the representatives, in equal numbers, of that employer and of that trade union, who are referred to in the Acts as the members of the council and who are the signatories of the original constitution of the council agreed to by them.
    The undertaking, industry, trade or occupation thus formed consists of that employer (undertaking), engaged in its industries (activities) and those of his employees employed on particular trades or occupations and who are some or all the members of that trade union.

    The undertaking, industry, trade or occupation in respect of which it is desired that that industrial council shall be registered may obviously comprise more employers and employees, of which the council has to be sufficiently representative.
    These extra employers are managers of branches or contractors etc, engaged in identical activities, who are part of or connected to the original employer (undertaking) but who themselves are not (paid up) members of the council or of a party to the council .
    The extra employees, on the other hand, are those who are not members of the trade union but are eligible to become such members (freedom of association).

    Note: The collocation has been used as such some 154 times, and appears in every significant section of the three Acts. I submit that it is impossible to understand the proper functioning of the provisions of the Acts without a correct understanding of the definition of that collocation, which by the way the Wiehahn Commission declared it was unable to do.

    Industrial council agreements:

    I submit that so-called non-parties are not engaged in the undertaking, industry, trade or occupation to which the industrial council agreement relates and that accordingly the agreement cannot be legally made binding on them and their employees by the Minister.

    The term “non-parties” relates to employers who are not members of an employers’ organisation which is a party to the council and who are not connected to an
    employer (undertaking) who is such a member.

    It is clear that the undertaking, industry, trade or occupation to which the agreement relates is identical to the one in respect of which the council has been registered: provided that all the parties to the council are also all the parties to the agreement.

    As may be gleaned from any published agreement, the wording of the Minster’s notice in the Government Gazette is not phrased in terms of the Act. In the notice an incorrect reference is made to “industry”, instead of the correct reference to the “undertaking, industry, trade or occupation to which the agreement relates”.

    This difference in meaning of the single word “industry” compared to the collocation constitutes itself in the involvement of a far larger numbers of employers and employees, including the so-called non-parties in the case of “industry”.

    It is also obvious that these many additional persons are forced to contribute into the numerous funds controlled by the councils – the very reason for the councils’ extortion tactics, in particular in regard to the non-party employers and their employees.

    Many attempts to challenge the legality of the Ministers’ agreement extension were made by non-parties in the law courts since 1924, most of which were dismissed in Magistrates courts based mainly on decisions made by judges in higher courts.

    This obviously brought us to scrutinise the relevant judgments plus records of the superior courts.

    Unlawful alterations of Statutes:

    We were shocked to discover a plethora of misquotations of the statutes, unlawful alterations of definitions, perjury and forgeries in affidavits, legal opinions and publications regarding the statutes, involving judges and other senior members of the legal fraternity together with representatives of big business (i.e.Seifsa), with the support of senior officials in the Department of Labour and even members of a publishing house.
    .
    From judgments it would appear that the resulting interpretations of this manipulated law were sometimes not comprehensible to uninvolved judges who endeavoured to come to terms with the functioning of the Acts. Unfortunately, none of them investigated the elusive underlying principle of the Acts well enough to realise the discrepancy in the Minister’s notice.

    All unlawful alterations are connected to the three definitions referred to above, which otherwise, if applied unchanged, would determine precisely the correct meaning of our collocation “undertaking, industry, trade or occupation”.

    The names of some of the principal actors in this legal saga of failed jurisprudence are listed below, with a brief description of some of their wrong-doings attached.

    It should be mentioned once more that all information herewith supplied is in the public domain – although often well hidden or disguised and sometimes difficult to comprehend.
    Detailed documentary evidence and proof of argument for all is at hand.

    The short List: (in this document only relating back to 1944)

    1) The Minister of Labour, 1944, incorrectly approved the registration of the industrial council (NICISEMI) in respect of the interests (industries) of the employers’ organisations which were parties to the council, (as recorded in their individual registration certificates, issued by the Registrar), and not in respect of the undertaking, industry, trade or occupation in respect of which it was desired that the council should be registered.
    One should mention that the registration in respect of the industries (half the character – the other half being the trades or occupations) of the employer parties is only possible if the definition of employers’ organisation is altered by the exchange of one “their employees” to “the employees” in it and therefore leads to a situation ad absurdum, rendering the council nil and void.

    2) Schreiner J.A., 1952, author of the judgment in Transvaal Manufacturers v Bespoke Tailoring, in which he exchanged the word “includes” with the word “or” in the quoted definition of “undertaking, industry, trade or occupation”, thereby enabling him to separate the four nouns in our mutually inclusive, sui generis collocation and interpret each noun in terms of their normal grammatical meaning as activity or industry. Schreiner in this instance chose “industry” – in line with the Minister’s incorrect Notice in the Gazette and the identical incorrect contents of the registration certificate of NICISEMI. The meaning of the correct definition clearly is that a portion or a section of an undertaking, industry, trade or occupation is still an undertaking, industry, trade or occupation.

    3) Ehlers, DP, 1983, author of Matshoba v Fry’s Metals, in which he misquotes the provisions of section 19(3) of the 1937 Act in that he equates (and exchanges) our collocation with the word “interests”, in line with the false registration of NICISEMI in respect of the “interests” as contained in the registration certificates of the employer organisation which are parties to the council.

    4) Erasmus, AM, 1985, author of Manquasela v Rheem, in which he extensively quotes from Schreiner’s judgment, inclusive of the altered definition of our collocation, thereby justifying his own incorrect conclusion regarding the jurisdiction of an industrial council (NICISEMI) over non-parties.

    5) Eli van der Merwe Louw, Minister of Manpower, 1991, signatory and author of the revised Government Notice purported to be in terms of section 48(1) of the Act, in which he replaces the already incorrect reference to “industry” with a revised incorrect reference to “Undertaking, Industry, Trade or Occupation” (capital first letters), apparently trying to signify with this simple grammatical manipulation an imagined mutually exclusiveness of the four nouns in the collocation and enabling the interpretation of their individual simple meaning as being an industry or an activity or an endeavour or an occupational limitation.

    6) Faber Piet, Lawyer, Sonnenbergs, 1992, author of a written legal opinion on behalf of the Industrial Council for the Building Industry (WP), which resulted in the prosecution of a small builder (a member of the Small Builders’ Association (WP)).
    In his opinion Faber quotes the definition of “agreement” from the Act, but which he had altered by adding the article “the” before the word parties in that definition, thereby creating the impression as if an agreement has to be between all the parties to a council and requiring a two third majority to bind all.
    To reinforce his first alteration Faber goes so far as to insert in his opinion the said definition, which judge Kriek had correctly quoted twice in his 1987 judgment of Consolidated Woolwashing v President Industrial Court, after altering Kriek’s quote of that definition as well.
    Finally, to get the ultimate confirmation of his false opinion, he musters the opinion of JJ Gauntlet, SC who in writing confirms all of Faber’s deliberations which are based on the forged definition of “agreement” and two other unlawfully altered definitions.

    7) Gauntlett, SC, 1992, author of a written legal opinion, in support of Faber’s above opinion, which is based on Faber’s alteration of the definition of “agreement” in the Act and on the unlawful alterations of the two other definitions referred to above.

    8) Angus, CEO Seifsa, 1992, author and signatory of an affidavit in the matter of Seifsa v Numsa, which contains the forgery of the definition of “employers’ organisation” and other untruths concerning Seifsa’s incorrect legal standing by implying that the federation is an employers’ organisation (of a particular kind, “their” replaced by “the”) and a party to the industrial council (NICISEMI).

    9) Gauntlett, SC, 1992, senior counsel for Seifsa in the matter of Seifsa v Numsa (above), in that he allows several incorrect statements in Angus’ affidavit to be presented to the court as being the truth, in particular an unlawfully modified definition of “employers’ organisation”.
    The word “their” (a possessive determiner) appears twice before the two words “employees” in the definition and was exchanged once with the article “the”.
    This change of definition unlawfully increases the jurisdiction of an employers’ organisation to include all employees in an “industry” and consequently also the employers of those employees – the non-parties.
    I submit that Gauntlett did so knowingly, since he had also quoted on page 22, paragraph 34 in his heads of argument the correct definition, but conveniently ignored this fact in that he refers on page 24 of his heads that the allegations of Angus (changed definition and Seifsa a party to the council) are not materially disputed.
    The ridiculous results of such unlawful actions may be seen in the 1992 judgment of Myburgh, J in Seifsa v Numsa.

    10) Myburgh, J, 1992, author of the judgment in Seifsa v Numsa, referred above, in that he accepts Angus’ incorrect definition of “employers’ organisation” (as advanced by Gauntlett) and further modifies that definition by exchanging the second “their” with an additional “the”. Both references in that definition to “their” employees have now been replaced by a reference to “the” employees. This change of words in the definition unlawfully enlarges the jurisdictional limitation of an employers’ organisation to now include the so-called non-parties.

    11) Gauntlett, SC, senior counsel for NICISEMI, in that he advances (in the 1993 matter of NICISEMI v Photocircuit) to the court, in his heads of argument, the Bespoke Tailoring matter relevant the unlawful alteration of our collocation by judge Schreiner in order to convince the court of the alleged jurisdiction of the council over non-parties.
    I submit that Gauntlett’s actions of knowingly peddling a judgment containing an unlawfully altered definition in order to gain a winning legal argument for his client, is equivalent to knowingly dealing with forged money.

    12) Gauntlett, SC, acting on behalf of NICISEMI in the above matter presented to the court the judgement of Myburgh (above) containing the altered definition of “employers’ organisation” and was challenged with regard to this alteration.
    In reply Gauntlett made a mockery of the court and in total disrespect of the correct statute exclaimed that one should not view the matter through a jewellers glass which, as a magnifying instrument screwed into one’s eye, enables one to focus on words like “the” and “their”.

    14) Scott, J, author of the judgment of the 1993 matter of NICISEMI v Photocircuit in which he based his ruling of the jurisdiction of the industrial council and their agreements over non-parties on the Bespoke Tailoring case which we know by now is based on the altered definition of our collocation.
    Judge Scott also misquotes Tindall, J in Rex v Siderski, 1927, who quite clearly stated that “It is clear, I think, that in relation to the employer an “undertaking, industry, trade or occupation” means not a personal vocation but a collective enterprise in which employers and employees are associated”.

    Summary and conclusion:

    Referring to Tindall’s dictum quoted above, I should mention the words of judge Vivier, who in the dying moments of the 1956 Act felt compelled to state in a 1998 matter of Industrial Council Building Industry (WP) v Transnet Industrial Council, that:
    “… I am not unmindful of the decisions of our courts which have interpreted the words “undertaking, industry, trade or occupation” as referring to some form of activity or pursuit rather than to persons who engage in them”, referring to the NICISEMI v Photocircuit matter and the cases there referred to. (judge Schreiner in Bespoke Tailoring).

    How close to the correct meaning of our collocation some of the judges were may be seen from the dictum of Solomon, J in Rex v Siderski, 1927:
    “An Industrial Council is not a miniature parliament which passes laws binding on any class it may select in the industrial, trading or working world. It is a body which brings about agreements between employers and employees in some particular undertaking, industry, trade or occupation.”
    Had Solomon realised that it must be employers and their employees as defined in the definition of employers’ organisation, he would have come to the conclusion that these are the only persons in the particular undertaking, industry, trade or occupation and that the employers mentioned are members of the employers’ organisation which is a party to the council.
    I respectfully submit that it would appear that judge Solomon was distracted by the Minister’s incorrect notice attached to the agreement and published in the Gazette which refers to the building industry instead of to the undertaking, industry, trade or occupation to which the agreement relates. The building industry, namely the “industry” in our collocation, is constituted by the combined registered interests (industries) of the members of the employer’ organisation – it is a function of the individual interests represented by the members and therefore a dynamic term. It is not a pre-conceived idea of the Building Industry which would include all and every activity connectable to that (static) industry – a notion which, it would appear, the judge had considered when assessing the Minister’s notice.

    In conclusion I submit that the jurisdiction regarding collective agreements reached by parties to industrial councils do not concern non-parties but only those employers and some or all their employees who are engaged or employed in the undertaking, industry, trade or occupation to which the agreements relate.

    Non-parties have been unlawfully dragged into the ambit of the agreements via unlawful alterations of three definitions contained in the previous LRA’s.

    The 1995 LRA

    In terms of schedule 7, part C, section 7, read together with the definition of “this Act” in section 213 of the 1995 LRA “an industrial council registered or deemed to be registered in terms of the LRA immediately before the commencement of this Act will be deemed to be a bargaining council under this Act and continues to be a body corporate.”

    Since it has been established that the industrial councils were previously incorrectly registered in respect of the activities of its employer parties, it is clear that registration as bargaining councils under a new Act does not cure the incorrect registration of these councils under the previous Acts, even if the unlawfully altered definitions of the previous Acts are now introduced as valid definitions in the new Act.

    In particular, the re-naming of the dynamic “industry” (the word in our collocation) to a static “Industry” now referred to as a “sector” in the new Act simply does not work, since the sector (Industry) is still a function of the industries (activities) of the registered parties to the council and obviously depends on which employers’ organisations take part as parties to the council.

    Additions or resignations of employers’ organisations as parties to the council will vary the sector. The question then arises who will be representing the resigned party ? I submit there cannot be a satisfactory answer and it is only turmoil that will ensue.
    I respectfully submit that the above exercise of changing a dynamic industry into a static one is a further attempt to accommodate and cover-up the irregularities committed under the previous Acts.
    This additional discrepancy triggered an investigation of Government Notice 97 of 1995 which reveals the members of Ministerial Task Team appointed by the SA Cabinet to overhaul the laws regulating labour relations.

    The notice further states that the task team was assisted by, amongst others, advocates MJD Wallis, SC, J Gauntlett SC and MSM Brassey.

    In these papers nothing has been said about Wallis and Brassey but they are in the longer list (still to be published) of wrong-doers – Brassey for exchanging our collocation with the “interests” of the employer parties in his 1987 New Labour Law publication and – Wallis SC for allowing the false claims in his client Angus’ affidavit to be presented to the SCA in the 2005/6 matter of Registrar of Pension Funds v Seifsa, namely that Seifsa is a registered employers’ organisation and a party to the various pension fund agreements reached by NICISEMI, when in fact Seifsa is not such registered employers’ organisation and not a party to the agreements.

    Just consider for one moment that wrong-doers helped re-write the statutes !?

    The result of such legal, I may say, hocus-pocus is that we now must refer, with regard to bargaining councils and their agreements, to provisions of an Act which are based on illegalities, perjury, and unlawful alterations of statutes.

    This sad state of affairs could be corrected easily in that the registration of any bargaining council is changed to a scope which does not just refer solely to activities or industries but rather to the employers and their employees who are engaged or employed in them and, most important, does include a reference to any so-called non-parties.

    Maybe it is opportune to mention what our first post-apartheid Minister of Labour Mr Tito Mboweni had to say in Business Day of 21.10.2005 about the new 1995 LRA:
    “From his vantage point as Reserve Bank governor, Tito Mboweni looked back in apparent despair yesterday at what has become of labour law reforms he steered through as SA’s first post-apartheid labour minister. Strongly suggesting his reforms had unintentionally become a barrier to growth, he lashed out at those responsible for implementing them.
    “The basic philosophy and intention of the labour market reforms we put in place since 1994 have to a large extent been undermined by lawyers, by the behaviour of the CCMA commissioners, by the behaviour of business and labour at the bargaining councils, and to some extent by the bureaucrats at the department of labour”, Mboweni said.”

    Finally, I should mention that as director of a company (Photocircuit) I have been intrigued and puzzled by the inconsistencies of many aspects regarding the LRA, and feel it my duty as a concerned citizen to inform the authorities and the public about the irregularities mentioned herein and thereby hopefully help to stimulate a lively debate about these issues which might lead again to the correct application of the provisions of our original Industrial Conciliation Acts dealing with industrial councils and conciliation boards.

    After all, in my opinion, these provisions of our previous Acts, correctly applied, would have constituted the most advanced and dynamic labour legislation introduced not anywhere else in the world.

    Any back-up documentation or references are available at a moment’s notice at your request.

    Kind Regards
    Horst Peschkes
    Concerned Citizen

    Tel/Fax 0217943918, Cel 0827716208, horstpeschkes@hotmail.com, Box 723, Plumstead 7801

    .

  • Horst

    Dear Professor de Vos,

    A recipient of my document dated 7.2.2013, a copy of which I sent to you on 15./19.2.2013, indicated that the paragraph on page 4 dealing with judge Schreiner’s 1952 alteration of the definition of “undertaking, industry, trade or occupation” should be more clearly stated since not many persons have at hand a copy of the definitions of Act 36 of 1937.
    I hereby expand on that paragraph and attach for your convenience copies of the definitions in section 1 of the 1937 Act (2 pages) and also pages 47 and 56 of the 1952 matter of Transvaal Manufacturers v Bespoke Tailoring.
    For completeness sake I further attach the relevant (incorrect) notices (two pages each) of the Minister, purported to be in terms of section 48(1) and (2) of the Act, relating to the industrial agreements of the parties in the above 1952 matter and the respective provisions of sections 19 and 48 (1) and (2) of the Act (2 pages). (Total attachments 10 pages).

    Now, the correct definition in section 1 of the Act is: “undertaking, industry, trade or occupation” includes a section or a portion of an undertaking, industry, trade or occupation.
    Judge Schreiner’s quote at 56 A-B of that definition is: “…of the industry (i.e. the undertaking, industry, trade or occupation or a section or portion thereof – sec. 1)”

    Comparing the definition of “undertaking, industry, trade or occupation” in the Act with the definition as quoted by judge Schreiner on page 56 at A-B of our matter referred to above, we can identify the following differences:

    1) The word “includes” has been exchanged with the word “or”.
    2) The indefinite article “a” before the word portion has been deleted.
    3) The collocation undertaking, industry, trade or occupation has been replaced by the word “thereof” the second time it appears in the definition and the words “of an”
    before that second collocation have been deleted.
    4) The article “the” has been added at the beginning of his altered definition.

    I submit that judge Schreiner thereby (incorrectly) determined beforehand that the Minister would satisfy himself “that the council would be sufficiently representative of the industry… ” – instead of the undertaking, industry, trade or occupation in respect of which it is desired that the council shall be registered. (section 19(1)and (2)).
    He then, in the same sentence, alters the definition in such a way as to enable him to interpret the collocation as single nouns having their normal grammatical meaning
    of an undertaking or an industry or a trade or an occupation – all activities or some kind of endeavor. (see 1) above). Judge Schreiner in this instance chose “industry”.

    The deletion of the indefinite article “a” has a very particular effect in that the words “section” and “portion” are now only separated by the word “or”, indicating that they have essentially the same meaning, when in fact “a section” is very different from “a portion” of an undertaking, industry, trade or occupation.

    The correct meaning of the definition clearly is that a section or a portion of an undertaking, industry, trade or occupation is still an undertaking, industry, trade or occupation.

    A section, as opposed to a portion, of an undertaking, industry, trade or occupation consists of some or all the members of one employers’ organisation and their or some of their employees who are members of one trade union party – whereas a portion consists of some or all the members of that employers’ organisation and some or all their employees part of whom are members of one particular trade union and the other part are members of another particular trade union.
    Hence, a section may be completely separated or sectioned from the original undertaking, industry, trade or occupation, whereas if a portion is separated from it another portion is left behind and is still part of it.

    I submit that with this (unlawful) alteration of the definition of our sui generis collocation the judge changed the entire tenet of the Act, relating to industrial councils or conciliation boards, to make it fall in line with the incorrect registration of the industrial council in respect of an industry and the incorrect notice of the Minister to bind employers and employees in an industry.

    I respectfully submit that the changing of statutes is the prerogative of the legislature and not the judiciary.

    Do not hesitate to request more information or documentation if required – and please ask questions.

    Kind Regards
    Horst Peschkes

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?
    March 10, 2013 at 13:55 pm

    Hey Mud Person (thanks Lisbeth and OB)

    “Sjoe! You should rather have stayed away from trenbolone, Maggs!”

    Stop blaming the ANC government, here’s the real cause of the failure to process firearm licences -> WHITE people!

    Two floors in the Pretoria Central Firearms Control Register offices have been completely sealed off and half of another shut down in the past two weeks after they were infested by rats and lice.

    Staff had to be relocated. This left work – pertaining to the processing of firearm applications and registrations – at a standstill.

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)
  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Eish! White people….

    “Hennie Mostert of Mostert Pest Control.

    “The rats and mice make their habitat in warm environments, where they breed litters of anything up to 100 at a time,” he said.”

    Wonder how many teats mama has….

  • Gwebecimele
  • Gwebecimele
  • Chris

    Horst says:
    March 10, 2013 at 22:32 pm

    I find it difficult to comprehend what you have written. I don’t have much time, of which you obviously have a lot, but please explain: You refer to “unlawful alterations”. What do you mean by that? Only Parliament can alter the text of an Act. Did you compare the alterations Parliament had made to the statutes over the years, or did you compare a judgement with a early version of an act and assumed that it had not been altered by Parliament?
    You refer to the 1937 Act. Which act is that, could you please supply the number of the Act? There were 57 act promulgated in 1937.

  • Mikhail Dworkin Fassbinder

    @ Gwebe et Maggs

    I, together with other dignitaries, have been approached to join a small delegation led by Mr Shivambu to carry a message of condolence to the masses of Bolivan Republic of Venezuela. Are you prepared to contribute a modest sum to find the trip? And is there any message you wish us to convey?

    Thank

  • Horst

    Chris, Industrial Conciliation Act No 36 of 1937 (definitions section 1).
    By an unlawful alteration I mean an alteration of a statute not done by Parliament (the legislature) but by a judge or an attorney or in another case by the CEO of Seifsa in his affidavit in the matter Seifsa v Numsa (1992)13ILJ1416(T) at 1418 C-I, which was accepted by the court (Myburgh J) on the grounds stated in the judgment.
    The one specific alteration of a statute (definition) I refer to in my second and third comments above was also not effected by Parliament but by judge Schreiner JA in Transvaal Manufacturers’ Association v Bespoke Tailoring Employers’ Association (SALR (AD) 1953(1) at page 56 A – B).
    The forgery of the definition of “agreement” by Piet Faber (with J Gauntlett in support) is best explained with the relevant supporting documents on hand. Are you interested ?
    And are you somewhat familiar with the IC Acts and LRA’s ?

  • Chris

    Horst says:
    March 11, 2013 at 12:51 pm

    I am a practicing lawyer and had labour law as part as my under graduate studies, I also completed an advanced course in labour law as part of my post graduate studies. I could therefore perhaps say I’m somewhat familier with the relevant acts. However I spend 10 or more hours every day just to do my job, so I don’t dig into legal subjects I don’t get paid for unless I find it exceptionally interesting.

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

    Gwebecimele
    March 11, 2013 at 10:37 am

    “Just over 39% of children live with their mothers only. About four percent live with their fathers only.”

    So I’m wondering how our rape and women abuse problem can be because of the “patriarchy”?

    “Patriarchy (rule by fathers) is a social system in which the male is the primary authority figure central to social organization and the central roles of political leadership, moral authority, and control of property, and where fathers hold authority over women and children.”

    http://en.wikipedia.org/wiki/Patriarchy

    It sounds quite the opposite.

  • Maggs Naidu – MUD people are gonna be angry, ne! (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    March 11, 2013 at 12:32 pm

    Dworky

    “@ Gwebe et Maggs”

    What’s with the “et” dude?

    Are you looking to be the next pope?

  • Horst

    Chris, I suggest you sleep over it – then read my papers again and once more, it is all there. It took me many years (on and off) of research to unravel the mystery of the underlying principle in the LRA’s, obviously against the resistance of the Ministers and his senior officials and some of the involved judges in our highest courts and the senior officials of the industrial (bargaining) councils and the Financial Services Board.
    You’ll wake up one morning and realise how simple that principle really is and you wonder how such irregularities could ever happen in this Country and why some judges colluded with the false Gazette Notices of the Minister instead of looking at the statutes.
    Three names should be mentioned here (part of the long list of wrong-doers).
    They are the Minister of Labour Colonel Creswell (1924), the Master Builders’ Association, Cape Peninsular and the then (1925) Acting Judge President Gardiner.
    These three persons colluded in a diversion away from the provisions of Act 11 of 1924.
    Thereby the stage was set for the subsequent financial exploitation of many non-members and their employees (their pension funds) and the ever increasing labour unrest in this Country leading directly to Marikana.

  • Gwebecimele

    Is Manuel also challenging the labour laws?????

    “Speaking at the Eastern Cape annual economics symposium, Manuel reportedly said public servants who were accused of stealing or abusing their positions should be suspended without pay.”

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