Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
16 September 2009

Who is advising the Minister of Defence?

When the protest by South African soldiers outside the Union Buildings turned violent two weeks ago, the government finally took notice of protestors. It is one thing for striking workers to toyi-toyi through the streets of Johannesburg and Cape Town or for poor people to burn tyres in protest at a lack of service delivery and lazy and corrupt councillors. But its altogether another thing for soldiers to embarrass the government by taking part in violent clashes with the police right outside the office window of President Jacob Zuma.

No wonder Defence Minister Lindiwe Sisulu announced yesterday that a new National Defence Force Service Commission may be created “as early as next Monday”. As the SABC reports:

Sisulu says the commission’s mandate will include reviewing working conditions, including remuneration in the defence force. “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.” She says trade unions are political bodies by their very nature and by introducing them to the Defence Force one creates problems. The call for a new service commission comes after last month’s violent protests by soldiers at the Union Buildings in Pretoria.

Although I obviously take a dim view of the unlawful behaviour of some of the the soldiers outside the Union Buildings, I am not sure the Minister’s course of action is either wise or legally plausible.  In 1999 in the case of South African National Defence Union v Minister of Defence and Another the Constitutional Court declared invalid the prohibition on defence force members from taking part in public protests because it infringed on their right to freedom of expression.

The Court also declared invalid the provision of the Defence Act which prohibited members of the defence force from becoming a member of a trade union as this contravened section 23 of the Constitution, which guarantees for every worker the right to form and join a trade union.

In 2007 in SANDU v Minister of Defence and Another many of the regulations promulgated to deal with the 1999 court decision was again challenged in the Constitutional Court. 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”. 

She 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.

After reading this judgment it is difficult not to conclude that members of the military leadership do not like trade unions and in effect tried to thwart the Constitutional Court judgment by taking steps to try and undermine the recognised military union. The Department of Defence 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.

All this makes clear that Minister Sisulu will have to amend the Constitution to give effect to her plan. Such an amendment will have to exclude soldiers from the enjoyment of the free speech rights in section 16 and the labour rights in section 23 of the Constitution. Meanwhile, in terms of the defence regulations and the Constitution, the Department of Defence has a legal duty to take part in the Military Bargaining Council and to negotiate with the defence union representatives.  The suggestion by Sisulu that a newly formed National Defence Force Service Commission will take over this task seems both in contravention of the Defence Act and the Constitution.

Apart from the fact that the Minister seems to have announced that she was going to break the law and breach the Constitution, I am not sure whether her proposed cause of action is wise. There clearly is a lot of discontent among soldiers in our defence force. At present the union presents an avenue for expressing and channelling such discontent. By banning the union and by unilaterally trying to impose a management solution, she will not ban the discontent – just drive it underground and make it more dangerous.

Clearly SANDU members acted unlawfully and disruptively at the Union Buildings and clearly there is no problem with imposing limits on the rights of defence force members to join trade unions and take part in trade union activities. But banning members from belonging to unions seem unconstitutional and stupid.

Wonder who has been advising the Minister.

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