Spite and malice passing as normalcy


It is now ten years ago that the Constitutional Court ruled in favour of the proposition that military personnel could join trade unions.

Contrary to popular opinion, South Africa is not the only country with military trade unions, though the relationship between these and the state could be uniquely bad.

Other nations blessed – or cursed, depending on your view – with military unions include Belgium, Denmark, Germany, Norway, Sweden and The Netherlands. Here as elsewhere – see the writing of Charles Moskos, Tom Stites and Lindy Heinecken – there is a vocal debate about the utility of military trade unions.

As far as I can tell the SANDF became stuck with military trade unions in 1999 through smart-asses with poor language skills. “Clever” lawyers failed the department twice – first in drafting amendments to the Defence Act that banned trade union activity in language so vague and wide that the courts had no trouble striking it down and then in failing to defend their measure properly.

The Constitutional Court recognised the labour rights of military personnel on the basis that as South African citizens they had the same rights as everyone else in the Bill of Rights, although they are excluded from the Labour Relations- and the Basic Conditions of Employment Acts.   

The relationship between the Department of Defence and the military unions has forever been fraught and rather reminds of the situation in Middle East that one observer once described as a cycle of “spite and malice passing as normalcy.”

Before 1999 the unions battled the gerrymandering of the Defence Act to outlaw them and ever since they have sparred with successive ministers to operationalise the Military Bargaining Council as well as achieving recognition: the unions claim they have the membership numbers to meet the threshold, the DoD claims the contrary.

The latest manifestation of “spite and malice passing as normalcy” is the “provisional dismissal” of soldiers alleged to have been involved in last week Wednesday`s mutinous riot at the Union Building.   

To my knowledge there is no such thing “provisional dismissal” in South African law, neither, in post-1994 labour law, has there ever been a reverse onus on employees to prove their innocence. The latter not only introduces something new into our law but also breaches the basic rules of natural justice and established precedent in evidentiary law.

In fact, it smacks of Apartheid-era security legislation. Indeed it reminds of an episode in Lewis Carroll`s Alice in Wonderland: In a mood of fury the Queen orders someone`s execution, stating “sentence first, then trial.”

No matter what one thinks of SA`s military unions and their (mis)conduct, this is just bizarre. It also raises grave doubts about the advice available to the Defence leadership as well as the calibre of the military`s lawyers.

Efforts to “ban” military trade unions will very likely fall foul of the May 26, 1999 judgment of the Constitutional Court, which is worth reading.    

In short, the court, by mouth of Judge Kate O`Regan, confirmed an earlier judgment by Pretoria High Court Judge Willie Hartzenberg. “This case is concerned primarily with the right to form and join trade unions,” O`Regan said. “Section 126B(1) [of the then Defence Act] constitutes a blanket ban on such a right.

“There can be no doubt of the constitutional imperative of maintaining a disciplined and effective Defence Force. I am not persuaded, however, that permitting members of the Permanent Force to join a trade union, no matter how its activities are circumscribed, will undermine the discipline and efficiency of the Defence Force.

“I conclude, therefore, that the total ban on trade unions in the Defence Force clearly goes beyond what is reasonable and justifiable to achieve the legitimate state objective of a disciplined military force. Such a ban can accordingly not be justified under section 36 and section 126B(1) is accordingly inconsistent with the Constitution and invalid.”

The bottom line is that the SANDF and SA are stuck with military unions. What is needed now for everyone to grow up and set aside the bloody-mindedness that has characterised military labour relations since the emergence of military trade unions in the mid-1990s.   

There is no way one can condone last Wednesday`s happening, but there is also no way one can condone the DoD`s misconduct of labour relations over the last decade-and-a-bit.

Indeed last week may well be the bitter fruit of the DoD`s cavalier approach, typified by the assertion in the Supreme Court of Appeal as recently as May 2006 that despite O`Regan`s judgement and subsequent changes to the Defence Act and the General Regulations of the SANDF – that “there was no obligation on the military to bargain with its employees.”

This means, by necessary implication, that the Military Bargaining Council was a toy telephone. How can frustrated soldiers be expected to stay in the law when the Department apparently does not?

Perhaps the SA Council of Churches, which has offered to mediate, can bring both sides to their senses for the good of us all.