Picking your nose with your big toe?

Defence Force Minister Lindiwe Sisulu (otherwise affectionately known as “The Princess”), is obviously not a great fan of section 23 of the Constitution. This section states, amongst other things, that: “everyone has the right to fair labour practices”; every worker has a right “to form and join a trade union” and “to participate in the activities and programmes of a trade union”. Section 23(5) also states that every trade union organization has the right to engage in collective bargaining.

After the chaotic march by members of the South African National Defence Union (SANDU) to the Union Buildings last year, the Minister hinted to a committee of Parliament that trade unions in the Defence Force will be scrapped, stating that: “We envisaged that within the Defence Force itself, we will have professional bodies where the military will be able to come together lobby for better conditions but certainly it will not be like trade unions.” Last month she again attacked SANDU, accusing it of spreading lies, being irresponsible reactionaries and being a danger to national security.

The Princess obviously was not well informed about the Constitution when she hinted at the scrapping of trade unions last year. One suspects she was unaware then that in 1999 in the case of South African National Defence Union v Minister of Defence and Another the Constitutional Court declared invalid provisions of the Defence Act which prohibited members of the defence force from becoming a member of a trade union.

One is also not sure that she was aware of the  2007 Constitutional Court judgment in SANDU v Minister of Defence and Another in which Justice O’Reagan confirmed that members of the defence force had a right to join trade unions and to take part in public protests as long as they were not in uniform and as long as the protest would not cause “actual or potential prejudice to good order and military discipline”.

That judgment also confirmed that the right of members of the defence force who belong to trade unions were otherwise severely limited. They are not allowed to strike. They are not allowed to participate in the activities of a trade union while taking part in a military operation, military exercises or in training. Their trade unions are also not allowed to affiliate to any political party or labour organisation.

But importantly, in this latter case, the Department of Defence was severely embarrassed after it unilaterally withdrew from the Military Bargaining Council – which it was legally obliged to take part in – and refused to negotiate with or even consult the defence union unless unilaterally imposed conditions for its participation were met. But the military regulations themselves prohibited the Defence Department from doing this and the Constitutional Court declared the actions of the defence department in this regard invalid.

The recently tabled Defence Amendment Bill must be seen as a belated attempt to circumvent these Constitutional Court judgments. Given these two judgments, it is clear that the amendments – as they currently read – will not pass constitutional muster. The Bill – if passed – will create an elaborate smokescreen to hide the fact that unions in the Defence Force are to be banned in everything but name. If passed, the Bill would make Unions in the Defence Force irrelevant and powerless.

The Bill will essentially scrap Military Bargaining Councils where salaries and benefits are currently negotiated between Unions and the Department of Defence. Instead the Bill will create a Defence Force Service Commission which will make recommendations on salaries and benefits to the Minister. However, the creation of this Commission seems like a sham, as section 62B(4) of the Bill states that the Minister determines the conditions of service of members of the Defence Force, in consultation with the Minister of Finance, after receiving the recommendations of the Commission. She can therefore ignore the Commission (and as a Princess, she would probably not want to take advice from a lowly Commission – even one hand-picked by herself).

In a rather lame attempt at circumventing the Constitutional Court jurisprudence on the right of soldiers to join trade unions and bargain collectively, the Bill provides for a rather elaborate but completely fake mechanism that pretends to imbue the Commission with independence and the power to bargain with military trade unions about salaries and benefits for soldiers. In the end, what the Bill will do, is to give the Minister the final say on what the salaries and benefits of soldiers will be – regardless of anything that happens at the Commission.

The Bill is a mish-mash of contradictory and unnecessary provisions all trying to hide the simple fact that this Bill is aimed at ending the existence of trade unions in the military and thus at subverting the judgments of the Constitutional Court. It provides for a completely unnecessary and elaborate (but ultimately fake) mechanism for the appointment of members of the Commission to try and hide the fact that the members of the Commission are really selected and appointed by the Minister and have absolutely no power.

In terms of the Bill, the Minister will select the members of the “nominations committee” that will nominate people to the Commission. She will also be able to select the members of the Commission from a list of names nominated by this “nominations committee”, who was in any case selected by her. In effect, she will therefore be able to nominate the members of this Commission herself. And in any case, even if she does not ensure the selection of trusted lackeys and yes-men to the Commission (as the Bill invites her to), she has final control over its members as she can fire them all at any time for very vague reasons.

The Bill states that the Minister can remove any member of the Commission, inter alia, if she decides that the member has failed to fulfill a function in an effective and efficient manner. She can also direct the Commission to take any action specified by the Minister if the Commission has failed (according to whom?) to fulfill a function in an effective and efficient manner. One can imagine a Princess easily finding fault with the work done by the Commissioners, so they will be serving at her pleasure and will either obey her wishes or be fired.

Given these draconian powers handed to the Minister by the Bill, and given its complete lack of power, it is quite laughable that the Bill pretends to create an independent body by stating that the Commission must act without fear, favor or prejudice. But just in case Commissioners get the wrong idea, the Bill also states that the Commission is accountable to the Minister. One can imagine a poor Commissioner trying to account to Minister Sisulu while acting at all times without fear, favor or prejudice. This is about as possible as picking your nose with your big toe.

In any case, this is all irrelevant, because the Commission has no power as the Minister may ignore any recommendations it makes and may implement her own views. The Bill creates the Commission in a completely transparent attempt to involve Unions in utterly irrelevant bargaining and consultation with it, while reserving all the power for the Minister to decide for herself how her fiefdom should be run. If passed, there will be no use in belonging to a Defence Force Union and, in effect, Unions would no longer be able to attract members and to function effectively in the Defence Force. The Bill thus places severe restrictions on the rights of soldiers to join trade unions and the rights of such unions to engage in collective bargaining. It would not pass constitutional muster.

Now, there are plausible arguments to be made on either side about the wisdom of our Constitution allowing soldiers to form and join trade unions and for those trade unions to engage in collective bargaining. Personally I am agnostic about this issue. But our Constitution does guarantee these rights and unless the Constitution is amended, the Minister should abide by the Constitution. This Bill is scandalous, not because it gives the Minister enormous power (although it does), but because it represents such a transparent and ham-handed attempt to subvert the Constitution and the judgments of the Constitutional Court.

Once again, I am forced to ask: who is advising the Minister on these constitutional issues? It cannot be anyone with integrity or any respect for the Constitution, that’s for sure.

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