Respondents and Cosatu have not filed Answering Affidavits by the extended deadline,
therefore the Free Market Foundation has decided to proceed to trial
in its constitutional challenge to S32 of the Labour Relations Act.
7 October 2013
The Free Market Foundation (FMF) announced today that it is proceeding with an application for a court date to have its constitutional challenge to S32 of the Labour Relations Act (LRA) heard in the Pretoria High Court. Over the six months since launching the challenge, the FMF granted generous extensions requested by Respondents and COSATU beyond the original deadline of 31 July 2013. The final deadline expired on 30 September 2013.
Late on 30 September Cosatu, which is not a Respondent, asked for a further extension to 31 October. This request has been declined and the FMF will now ask the court for a date for the hearing on the basis of the documents before it.
FMF chairman Herman Mashaba said “We have done everything we could to allow everyone concerned ample time to consider and file responses. It has been six months. We have been fair and patient because we want to ensure that all legitimate views are presented to the court in this matter of great national urgency and importance. We must now proceed to court.”
On 4 March 2013, the FMF filed a constitutional challenge in the Gauteng North High Court to Section 32 of the Labour Relations Act 1995. This clause forces the Minister of labour to impose private labour agreements on employers, employees and the unemployed without considering their interests and without their views being presented or considered. Apart from this being an insult to the minister, it is a significant cause of South Africa having one of the world’s highest levels of unemployment.
The FMF cited 50 respondents, including the Minister of Labour, the Minster of Justice and Constitutional Development and the 48 Bargaining Councils . By the original deadline of 31 July 2013, the Minister of Labour, 27 bargaining councils and the Minister of Justice and Constitutional Development had responded.
Although not cited as a Respondent, on the 31 July deadline, the Confederation of South African Trade Unions (Cosatu) filed an application to intervene. Despite there being no legal basis for admitting Cosatu (note 1), the FMF decided not to oppose their application in the interests of inclusiveness, fairness and transparency. A request for a further extention to 31 August was granted.
When this deadline passed, another extension was requested and granted to 30 September, by which date no Answering Affidavits were received. In the circumstances, a request for an extension to 31 October has been declined.
“We cannot alow something so urgent and important to drag on forever” said Herman Mashaba. “That we agreed to extensive delays, despite no obligation to do so, shows our commitment to ensure that all parties are given enough time to formulate their responses.
Mashaba continued “I have said many times that this is not the road we would have chosen. We did not seek this legal confrontation. But I do not want to look back one day and say I saw what was happening and did nothing. We must give a voice to those who do not have one: the 7 million unemployed South Africans who languish on our streets and in our townships, especially the millions of young people whose youth, energy, human spirit and potential is being squandered by our labour laws. Winning this case will not end the crisis, but it will remove a key obstacle which prevents many small and medium businesses from hiring people, especially unskilled youth who need that first critical foot on the employment ladder”.
The FMF annoucement comes a week after the International Monetary Fund (IMF) and the Governor of the reserve bank, Gill Marcus, have urged the government to relax labour law to allow for new job creation and economic growth . The IMF report says that more jobs would be created if economic growth were stronger and the labour market “more flexible”. Nedbank also released a monthly report last week which flagged labour issues as a constraint on South Africa’s investment, production and export capacity.
To keep the media informed regarding this case, the FMF will continue to issue regular updates.
Notes for Editors
1. The Minister of Labour and 27 Bargaining Councils have filed notices of opposition. The Minister of Justice and Constitutional Development advised that he would not oppose the application.
2. On 31 July Cosatu applied to intervene as a respondent despite, in the FMF’s view, having no legal grounds for inclusion. The FMF decided in good faith and in interests of inclusiveness, fairness and transparency not to oppose Cosatu’s application despite the facts that:
a. Constitutional challenges are essentially between challengers and the government;
b. Since Cosatu does not participate in the Bargaining Council process and is not responsible for the law it has no direct interest in the case;
c. It could legitimately appear as amicus curiae.
d. Cosatu’s evidence can be presented through one of the current Respondents.
3. Unemployment Statistics
• 4.7million people are actively looking for work
• 2.3 million are discouraged from seeking jobs
• 2.1 million are under-employed
• 12% of people between ages 15-24 have a job.
The Free Market Foundation (FMF) is an independent, non-profit, public benefit organisation, created in 1975 by pro-free market business and civil society national bodies to work for a non-racial, free and prosperous South Africa. As a policy organisation it promotes sound economic policies and the principles of good law. As a think tank it seeks and puts forward solutions to some of the country’s most pressing problems: unemployment, poverty, growth, education, health care, electricity supply, and more. The FMF was instrumental in the post apartheid negotiations and directly influenced the Constitutional Commission to include the property rights clause: a critical cornerstone of economic freedom.
The FMF has a wealth of information in papers, articles and opinion pieces available on the website which can influence the public debate and present alternative policies to the people of South Africa. Please look at www.freemarketfoundation.com.
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