Showing posts with label Judicial Reform. Show all posts
Showing posts with label Judicial Reform. Show all posts
Thursday, November 21, 2013
Tuesday, September 25, 2012
Sharp divisions on the Constitutional Court about the right to strike
In the aftermath of the Marikana massacre, the rights of striking workers and the unions they might belong to have once again come under the spotlight. Judging from the letters pages of middle brow newspapers, blog comments and callers to phone-in programmes, many middle class South Africans are about just as sympathetic to strikers and their constitutionally protected rights as they are to Julius Malema. Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.
Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.
In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.
Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.
For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.
As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:
It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.
This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:
The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.
In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:
The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”
The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.
The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.
The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.
Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.
Source: Constitutionally Speaking
Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.
In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.
Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.
For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.
As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:
The point of departure in interpreting section 64(1)(a) [and, one assumes, section 64(1)(b)] is that we should not restrict the right to strike more than is expressly required by the language of the provision, unless the purposes of the Act and the section on “a proper interpretation of the statute … imports them.” The relevance of a restrictive approach is to raise a cautionary flag against restricting the right more than is expressly provided for. Intrusion into the right should only be as much as is necessary to achieve the purpose of the provision and this requires sensitivity to the constraints of the language used.
It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.
This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:
to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process.
The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.
In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:
if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees’ demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules?
The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”
The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.
The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.
The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.
Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.
Source: Constitutionally Speaking
Tuesday, November 22, 2011
The bifurcated legal profession, an archaic and elite based system not compatible with our new constitutional ethos
The Minister of Justice has announced a Legal Practice Bill to restructure the legal profession and ease restrictions on entry into the profession to make it more representative.
The Bill contains important provisions including mandating one governing body for the legal profession. Absent from the proposals is the need for institutional transformation, better legal education and access to legal education.
Institutional changes namely the dismantling of the quaint and antiquated split profession and the elitism that accompanies the Bar and its attendant system of silk are essential. The Bar provides advocates a degree of freedom such as not maintaining a trust account nor adhering to accounting practices which attorneys are required to adhere to. Its historical origins and the grave collateral damage from this system are too serious to ignore. If ever a death was desirable, it's time to pull the plug on the split profession coupled with the implementation of a better legal education model. The current system benefits a few, produces consequences and incubates a mindset, which are not tethered to our constitutional ethos.
Institutions are important in channeling human behavior in certain directions and achieving certain results. The advocate's profession historically was not anchored in moral bearings and played a supportive role in apartheid. If one chronicles its past, it produced many shallow leaders and a blighted history of acting against struggle lawyers, who were struck off the roll of advocates at the behest of the Bar. Black lawyers had difficulty-obtaining pupilage.
The Bar has not dealt with its demons nor adjusted to the realities of our new constitutional order. The addict cannot self-medicate nor is it going to self-heal. The attorney's profession is not without its demons and fusion ultimately needs to address transformation within the entire profession. The structural impediments at the Bar are more intractable. The idiosyncrasies and oddities of the Bar is a relic from the British system suited to perpetuating an elite and class based system. In England, it has been chronicled that entry into and success at the Bar largely depends upon social connections. The Bar in South Africa partakes largely of white and male elite. These elites have historically reaped great financial rewards. The Bar sets its own fee guidelines in an opaque way without any public consultation. The traditional albeit suspect justification for the split profession is an independent barrister/advocate provides the client a separate independent opinion. There is substantial evidence that this ends up costing clients more money, which was highlighted by Sir David Clementi in his review of the legal profession in England. In England, there is a trend of solicitors keeping litigation work in-house employing in-house counsel, which saves clients legal costs.
Even though the Bar is not a statutory body, the legal culture has created a de facto situation, produced over a century, which evaluates and validates trial lawyering skills through the established Bar. Those that practice at the alternate Bar/s are relegated to a second-class status. Professional associations like trade unions are prone to group advancement even if this is at the expense of the needs of the larger society. Our Constitution has discarded the British Westminster system. Our bill of rights has both horizontal and vertical application. Freedom of association or autonomy has no talismanic quality that allows for a system of subordination, particularly when it impacts on access to justice or the rights of others to practice their profession based on equality.
The Bar is not about the bright and savvy succeeding where others fail, and the less accomplished at the bottom of the food chain fighting over scraps. It is about those driven by self-interest who by virtue of dubious historical factors, who are invested in certain outcomes. They are able to control who enters the profession and who benefits in an optimal way, wanting to keep things the way they are. Vestiges of the past, even from private actors, which perpetuate subordination, need to be dismantled.
There is nothing wrong with a program for specialists, implemented rationally under uniform conditions as could be the case with the medical profession. Under the current system, a law graduate might be refused entry into the establishment Bar (which is the first level to practice as an advocate), given that the Bar controls the number of pupils and the placement of the pupils in any given year. This might be alright in the elite based British system but not in a constitutional state that values equality and the right to practice one's profession. The German Constitutional Court in the Pharmacy Case held that a limit on the number of practicing pharmacists was unconstitutional because this amounts to a limitation on the freedom to choose an occupation. In that case, qualified pharmacists were prevented from practicing their trade in order to control competition. The court held this also violates the principle of equality. The case of the Bar is more egregious because a private association, which has acquired a status because of dubious historical factors, is enforcing the validation and numerical limitations.
The Bar also controls who is recognized as a "super advocate" to merit being called a "senior counsel" which entitles them to charge higher fees. Our Constitution demands rationality. There is a great opaqueness, which surrounds the awarding of senior counsel status leading many to believe it is an old boy "buddy buddy" network.
After the appointment of the new Chief Justice, the General Council of the Bar asked the respective Bar Councils to scrutinize judicial nominees more closely. Elites from the Bar are not getting onto the bench in the numbers they were accustomed to. There has been an outcry from arguably the most untransformed Bar, the Cape Bar Council because several of their members were passed over for judicial appointments. It is at its core an incursion and attempt to influence the selection of judges from a special interest group. One cannot help but gawk at the spectacle of a group that collaborated and benefited from a repressive system and which remains largely untransformed, performing the role of the unapproving and self appointed head master, to vet and certify suitable judicial nominees.
At the JSC hearings, a lot of frustration has been vented on individual nominees that came out of the hierarchal system. Of late, the hearings have become demonstratively nastier. Those that came through and benefit from the opiate of the Bar are prone to defend their privileges and the mantra of the Bar's virtues in validating who are the "best and brightest" advocates. This mind set can infect white and the few people of colour within the Bar alike. We cannot afford to go through years of JSC hearings scapegoating individual nominees, usually white males. Progressives need to engage in deconstruction of the racial, gender and power tilt, which produces the hierarchies and the form of subordination and mind set that is incubated within the Bar. Ultimately, our democracy requires dismantling institutions, which do not capture and frame the deep paradigm and normative shift of our constitutional order.
The supreme irony is the Bar operates in the worse tradition of the British class and elite based system, and sanctions its members if they deal with the public directly. One cannot fathom the absurdity of this and how can this be in conformity with our new constitutional ethos? It is from this isolated group, which operates under a rarified existence, the Bar would want appointments to the bench to be made. Democracy involves a connection between institutions and people. The courts represent the third branch of government. Under most legal systems, lawyers are considered as officers of the court. Interaction between lawyers and the broader society has to produce a better understanding of people's struggles, emotions, euphoria, aspirations or hard luck. Even in England, the Public Access Scheme introduced in 2004 allows Barristers under certain circumstances to deal directly with the public. Ultimately, our struggle for social justice will benefit from a change in the institutions of the profession. A judge that comes from the ranks of a legal profession connected with the community and client they served is more likely to have the profile the new social contract mandates.
It is incongruous that we have kicked this can down the road for so long. The timidity and failure to deal with the elite based legal profession, which does not comport with the paradigm and normative values of our constitutional order, is no longer an option. The challenge is how to truly transform the universities and the legal profession into instruments of change, which serve the South African population as a whole. That is what a new Legal Practice Bill must address.
By Ziyad Motala, Professor of Law Howard Law School and Extraordinary Professor of Law University of Western Cape.
Source: Legalbrief
The Bill contains important provisions including mandating one governing body for the legal profession. Absent from the proposals is the need for institutional transformation, better legal education and access to legal education.
Institutional changes namely the dismantling of the quaint and antiquated split profession and the elitism that accompanies the Bar and its attendant system of silk are essential. The Bar provides advocates a degree of freedom such as not maintaining a trust account nor adhering to accounting practices which attorneys are required to adhere to. Its historical origins and the grave collateral damage from this system are too serious to ignore. If ever a death was desirable, it's time to pull the plug on the split profession coupled with the implementation of a better legal education model. The current system benefits a few, produces consequences and incubates a mindset, which are not tethered to our constitutional ethos.
Institutions are important in channeling human behavior in certain directions and achieving certain results. The advocate's profession historically was not anchored in moral bearings and played a supportive role in apartheid. If one chronicles its past, it produced many shallow leaders and a blighted history of acting against struggle lawyers, who were struck off the roll of advocates at the behest of the Bar. Black lawyers had difficulty-obtaining pupilage.
The Bar has not dealt with its demons nor adjusted to the realities of our new constitutional order. The addict cannot self-medicate nor is it going to self-heal. The attorney's profession is not without its demons and fusion ultimately needs to address transformation within the entire profession. The structural impediments at the Bar are more intractable. The idiosyncrasies and oddities of the Bar is a relic from the British system suited to perpetuating an elite and class based system. In England, it has been chronicled that entry into and success at the Bar largely depends upon social connections. The Bar in South Africa partakes largely of white and male elite. These elites have historically reaped great financial rewards. The Bar sets its own fee guidelines in an opaque way without any public consultation. The traditional albeit suspect justification for the split profession is an independent barrister/advocate provides the client a separate independent opinion. There is substantial evidence that this ends up costing clients more money, which was highlighted by Sir David Clementi in his review of the legal profession in England. In England, there is a trend of solicitors keeping litigation work in-house employing in-house counsel, which saves clients legal costs.
Even though the Bar is not a statutory body, the legal culture has created a de facto situation, produced over a century, which evaluates and validates trial lawyering skills through the established Bar. Those that practice at the alternate Bar/s are relegated to a second-class status. Professional associations like trade unions are prone to group advancement even if this is at the expense of the needs of the larger society. Our Constitution has discarded the British Westminster system. Our bill of rights has both horizontal and vertical application. Freedom of association or autonomy has no talismanic quality that allows for a system of subordination, particularly when it impacts on access to justice or the rights of others to practice their profession based on equality.
The Bar is not about the bright and savvy succeeding where others fail, and the less accomplished at the bottom of the food chain fighting over scraps. It is about those driven by self-interest who by virtue of dubious historical factors, who are invested in certain outcomes. They are able to control who enters the profession and who benefits in an optimal way, wanting to keep things the way they are. Vestiges of the past, even from private actors, which perpetuate subordination, need to be dismantled.
There is nothing wrong with a program for specialists, implemented rationally under uniform conditions as could be the case with the medical profession. Under the current system, a law graduate might be refused entry into the establishment Bar (which is the first level to practice as an advocate), given that the Bar controls the number of pupils and the placement of the pupils in any given year. This might be alright in the elite based British system but not in a constitutional state that values equality and the right to practice one's profession. The German Constitutional Court in the Pharmacy Case held that a limit on the number of practicing pharmacists was unconstitutional because this amounts to a limitation on the freedom to choose an occupation. In that case, qualified pharmacists were prevented from practicing their trade in order to control competition. The court held this also violates the principle of equality. The case of the Bar is more egregious because a private association, which has acquired a status because of dubious historical factors, is enforcing the validation and numerical limitations.
The Bar also controls who is recognized as a "super advocate" to merit being called a "senior counsel" which entitles them to charge higher fees. Our Constitution demands rationality. There is a great opaqueness, which surrounds the awarding of senior counsel status leading many to believe it is an old boy "buddy buddy" network.
After the appointment of the new Chief Justice, the General Council of the Bar asked the respective Bar Councils to scrutinize judicial nominees more closely. Elites from the Bar are not getting onto the bench in the numbers they were accustomed to. There has been an outcry from arguably the most untransformed Bar, the Cape Bar Council because several of their members were passed over for judicial appointments. It is at its core an incursion and attempt to influence the selection of judges from a special interest group. One cannot help but gawk at the spectacle of a group that collaborated and benefited from a repressive system and which remains largely untransformed, performing the role of the unapproving and self appointed head master, to vet and certify suitable judicial nominees.
At the JSC hearings, a lot of frustration has been vented on individual nominees that came out of the hierarchal system. Of late, the hearings have become demonstratively nastier. Those that came through and benefit from the opiate of the Bar are prone to defend their privileges and the mantra of the Bar's virtues in validating who are the "best and brightest" advocates. This mind set can infect white and the few people of colour within the Bar alike. We cannot afford to go through years of JSC hearings scapegoating individual nominees, usually white males. Progressives need to engage in deconstruction of the racial, gender and power tilt, which produces the hierarchies and the form of subordination and mind set that is incubated within the Bar. Ultimately, our democracy requires dismantling institutions, which do not capture and frame the deep paradigm and normative shift of our constitutional order.
The supreme irony is the Bar operates in the worse tradition of the British class and elite based system, and sanctions its members if they deal with the public directly. One cannot fathom the absurdity of this and how can this be in conformity with our new constitutional ethos? It is from this isolated group, which operates under a rarified existence, the Bar would want appointments to the bench to be made. Democracy involves a connection between institutions and people. The courts represent the third branch of government. Under most legal systems, lawyers are considered as officers of the court. Interaction between lawyers and the broader society has to produce a better understanding of people's struggles, emotions, euphoria, aspirations or hard luck. Even in England, the Public Access Scheme introduced in 2004 allows Barristers under certain circumstances to deal directly with the public. Ultimately, our struggle for social justice will benefit from a change in the institutions of the profession. A judge that comes from the ranks of a legal profession connected with the community and client they served is more likely to have the profile the new social contract mandates.
It is incongruous that we have kicked this can down the road for so long. The timidity and failure to deal with the elite based legal profession, which does not comport with the paradigm and normative values of our constitutional order, is no longer an option. The challenge is how to truly transform the universities and the legal profession into instruments of change, which serve the South African population as a whole. That is what a new Legal Practice Bill must address.
By Ziyad Motala, Professor of Law Howard Law School and Extraordinary Professor of Law University of Western Cape.
Source: Legalbrief
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