Constitutional misunderstandings

Posted on September 8, 2014


South Africa’s justly praised Constitution and the institutions it created have taken something of a verbal battering over the past week and more — and 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 in the country’s major trade union federation, Cosatu.

The South African Communist Party (SACP) and senior elements within the governing ANC, along with several trade union affiliates of the union federation 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 support her and her office.

However, superceding these squabbles have been 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 generally conservative and still largely ethnically orientated union have fought an eight-year battle on the grounds that she was discriminated against on a racial basis by being refused 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 Concourt decision has done is to open up the whole 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 and why it is necessary as a remedy for historic discrimination.

What must be made clear in the Barnard case is that the Concourt 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 did do was agree that demoghraphic balance was a legitimate goal to be aimed for.

It also stresses, in separate judgements, 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.

However, this case is — as the eight 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 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 that have “become increasingly laced with those of one opposition party”.

The South African Democratic Teachers’ Union (Sadtu) went even further, stating: “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 Mantshe and his deputy, Jesse Duarte, also questioned Madonsela’s conduct and cast aspersions at 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 fully to 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 that are damaging the federation and the labour movement as a whole.