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Unrestrained
 
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Motsoaledi may have been onto something!

13 December 2011, 15:00
Do we all remember the ridiculous strike action, which rocked our essential services to their cores, towards the end of 2010?  It’s old news now. However, a very important consideration recently came to light; one that could and should be used in future, when considering the consequences of strike action. This kind of thing seems to happen regularly and something needs to be done about it.

 

South Africa’s Health Minister, Aaron Motsoaledi, said, in the heat of it, that the actions of certain striking individuals amounted to murder. Whether he said this, based on his emotions, or, whether he had looked into the law, is a matter of speculation. Either way, he may well have had a very good point. There is a mechanism, through which murder charges may have been made to stick and it may be an option worth pursuing, in the future, so as to provide South Africans with the sense of justice, of which they are deserving and in need. This mechanism has recently been invoked in the matter against the taxi driver, Jacob Humphreys, in order to find him guilty of murder and it is a mechanism that I believe should be used a lot more.

 

You see, if we were to charge those people, from essential services, who took part in the strike, no doubt, their defence would be that they did not intend for anyone to die. But, people did die, certain of whom would not have died, but for the strike action and intention is not as simple a legal concept as these people may think. We still could (and should) convict them for their morally reprehensible actions.

 

The mechanism that we could use to achieve this is the legal concept of dolus eventualis, a form of intention that caters perfectly to the bahaviour displayed by NEHAWU and certain of its members. You see, one needs not to have had the unlawful consequence (in this case death) as an objective or aim. Instead, if the prosecution can prove that the accused foresaw the consequence, even as a remote possibility and, despite such foresight, reconciled him/herself to that possibility, the law is capable of imposing the required intent onto the accused.

 

Thus, for example, if the prosecution could show that those hooligans, who blocked hospital entrances, flooded and raided operating theatres (removing nurses from attending to anaesthetised patients) foresaw, even as a slight possibility, that a patient could die as a consequence, the courts may be inclined to extend the required intent, so as to convict them on a charge of murder (where patients died) or for attempted murder (where the patients lived).

 

What of the union leaders who, initially, give the go-ahead for the unprotected strike action? The Labour Relations Act 66 of 1995 is quite clear that strike action is not permitted in the case of essential services, the definition of which, according to section 213 is: “the interruption of which endangers the life, personal safety or health of the whole or any part of the population.” The fact that this applies and always did apply to health workers was confirmed by the interdict obtained, which prevented these people from engaging in further strike action.

 

However, people still died before the interdictory relief was granted. It would, surely, not be difficult to prove that union leaders foresaw that, as a consequence of their giving the go-ahead to strike, their minions would strike, people would be deprived of (or actively disrupted during) essential services and would die as a consequence. Yet, they accepted this possibility and gave the order. Even if they did not wish for people to die, dolus eventualis should apply in this case. One is simply not permitted to gamble with human lives.

 

At a very minimum, culpable homicide could apply, in that those, employed in essential services, had a clear legal duty to care for those in need (i.e. not to go on strike, as per the LRA). They willingly neglected this duty and people died as a consequence. 

 

What kind of society do we live in, where human lives have come to mean less than a percentage of a monthly salary? Union leaders and health workers in essential services held this country hostage, in circumstances where they were not permitted to do so. They displayed flagrant disregard for the wellbeing of the country, as a whole, and for the lives of many individuals that were lost, in consequence. The only reason that these people have not lost their jobs is because everyone appreciates that it would be too difficult to replace them all and train other people. This is the leverage that they used and this is why it may be worth looking into making an example of their leaders.

 

Now that the strike is well over and the death toll is capable of being tallied, it may be worthwhile to haul a few of them before a judge and charge them with murder or attempted murder. Justice is two-pronged. It is both restorative and retributive. This country deserves some form of retribution, for having been manipulated in the way that it was. Not only would sending a few of these people to prison achieve a sense of justice, but would discourage future shenanigans, of the kind that we saw in 2010. Health workers displayed a complete lack of social responsibility and, perhaps, the only way to instill it in them would be to make an example of a few of their own.

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