Inside Labour: ConCourt ruling opens new debate

2014-09-10 06:45

Our Constitution and the institutions it created have taken something of a verbal battering over the past few weeks – often for the wrong reasons.

In the process, the Office of the Public Protector has become something of a surrogate battleground for the opposing factions in trade federation Cosatu.

The SA Communist Party (SACP) and senior elements within the governing ANC, along with several trade union affiliates of Cosatu, have ranted about Pubic Protector Thuli Madonsela and her office.

At the same time, Cosatu general secretary Zwelinzima Vavi has condemned criticism of the Public Protector and committed the federation to supporting her and her office.

But superseding these squabbles last week were some evidently racist comments directed at the Constitution and the Constitutional Court over its decision in the Renate Barnard case that is supported by the Solidarity union.

Barnard and her union have fought an almost eight-year battle on the grounds that she was discriminated against on a racial basis by being refused a promotion she had applied for and had been recommended for.

What all these often robust criticisms have in common seems to be a misrepresentation of the facts, especially about the Employment Equity Act and the role of the Public Protector.

Whether many of these are a result of deliberate distortion, misunderstanding or ignorance is open to question.

But what the Constitutional Court decision has done is open up the debate about affirmative action and the Employment Equity Act. This is to be welcomed, especially if more people become aware of the details and the law applying to affirmative action.

What must be made clear in the Barnard case is the Constitutional Court did not come down in favour of discrimination on any grounds. In fact, the post applied for by Barnard was filled initially by a white man of senior rank who was “moved sideways” into the job.

What the court stresses is that affirmative action measures must be rational and not punitive or retaliatory. It also warns that efficiency and competence must not be compromised in applying policies that aim to redress historic wrongs.

But this case is – as the many years of court cases show – a fairly complicated matter that will doubtless keep lawyers engaged in arguments for years. The fact that the post in question was deemed not to be essential and was later abolished is only part of this.

Rather less complicated is the case of the Public Protector who, along with her office, has been castigated for properly fulfilling the role clearly laid out in section 182 of the Constitution. And an element of paranoia seems to be present in most of these attacks.

The SACP, for example, has claimed that Madonsela’s comments have “become increasingly laced with those of one opposition party”.

The SA Democratic Teachers’ Union (Sadtu) went even further in stating that “the actions of Advocate Thuli Madonsela are clear systematic signs planned to create anarchy and divisions within our society and the ANC in particular”.

ANC secretary-general Gwede Mantashe and his deputy Jessie Duarte also questioned Madonsela’s conduct and cast aspersions on her credibility.

But Vavi noted: “We find very disturbing the type of comments, the conspiracy theories and the downright insults that have been directed at the Office of the Public Protector.”

This statement revealed again the divisions that are threatening to tear Cosatu apart, because Sadtu is one of the federation’s largest affiliates.

It lines up with the majority of the Cosatu executive and the SACP in an increasingly bitter wrangle within Cosatu that, Vavi admits, is weakening the federation.

With more time and resources spent on politicking, there has been a general decline in service to members, leading to a decline in overall union membership. Cosatu has never been able to fully justify its claim to represent “more than 2?million organised workers”.

It is now clearly some way off that mark.

This fraying at the edges has triggered a fear of fragmentation and frantic demands to preserve unity at all costs. But unity will not be preserved until and unless the underlying issues are resolved once and for all.

And the key here lies with the Cosatu constitution and the legitimate demand by nine affiliates for a special national congress.

Such a democratic gathering would enable delegates to confront, debate and finally resolve the issues damaging the federation and the labour movement as a whole.

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