Tag Archive | COSATU

Expropriation Bill phrases could be re-drafted

Most countries have forms of expropriation…..

As a result of three full days of public hearings on the new Expropriation Bill,  Deputy Minister of croninPublic Works, Jeremy Cronin, confirmed that in a number of aspects, notably on issues of arbitration and definitions of “the public interest”, the Bill as tabled needed re-drafting considering certain constitutional aspects.

He was adamant that a Bill of this nature was needed, a fact not disputed by many in submissions, but the wording of the Bill at present certainly seems to have raised the spectre of a constitutional challenge if the hearings were anything to go by unless considerable alterations take place.

Expropriation definition will trump all

Whether the Expropriation Bill is land reform in disguise or a genuine attempt by the Ministry of Public Works to unlock mechanisms that are preventing infrastructure development became the kernel of discussion and debate. This was after some twenty five submissions by various parties across the entire business, political analyst and land ownership spectrum.

Clearly opinion is still divided but the motives for dissension and the subject of the submissions put to the Portfolio Committee on Public Works were as varied as the arguments put forward by the department itself in the need for such a Bill.

Eskom used as reason

The worry behind any disagreements with the wording of the new Bill appeared in question time. Would the Department of Public Works (DAPW) seriously put forward an ANC Alliance proposal for “land grabbing” under the simple guise of a platform of argument such as that Eskom needed to resolve land issues to extend electricity grid installations or that the N2 was held up in the Eastern Cape?

Anything else in the “public interest” including “property”, as yet undefined, would be unconstitutional, said many of the submissions, whether agreeing to the basic need to alter the anchor Act by amendment or not because the ‘willing buyer, willing seller” principle was clearly “out of the window”.

How close is Constitution on “expropriation”

Minister Cronin The Bill tabled clearly states that it “seeks to align the Expropriation Act, 1975, with the Constitution and to provide a common framework to guide the processes and procedures for expropriation of property by organs of state.”    This, the Bill says, would be in the “public interest” but again and again the query arose as to what the “public interest” might be.

Throughout the entire round of submissions, the Deputy Minister of Public Works, Jeremy Cronin, was at pains to express the benign in nature of the proposed Bill insofar as plans to expropriate land. The intention of the Bill was merely to speed up processes that hindered development in the “public interest”, he argued.

He admitted that in some cases this might include “land development” but denied that the Bill was in fact a pre-cursor to the proposed Land Reform Bill and the recently tabled Promotion and Protection of Investment Bill, where the issue of land in the one case and “property” in the other case arose.

CCCI attacks whole raft of Bills

ccci logoSuspicions in respect of this were strongly expressed by Ms Janine Myburgh of the Cape Chamber of Commerce (CCCI) who claimed to represent also the views of SA Chamber of Commerce, in completely rejecting the Bill as a flagrant attempt to undermine the Constitution.   She thus brought CCCI to a great degree into contradiction with Business Unity SA (BUSA) and even Agric-SA, both of whom agreed that such a Bill was in order but that the wording need much attention on the issues under debate.

In some respects the CCCI presentation, as lodged with Parliament and subsequently circulated, differed in basic content from the speech actually made, which was particularly vehement in its rejection of the Bill and which, Ms Myburgh said, flew in the face of the Constitution. She linked the Expropriation Bill with the Promotion and Protection of Investment and other land reform legislation from the Minister of Rural and Land Development together.

Coming round the corners is more…

CCCI was convinced that the Expropriation Bill was the first of more legislation to come that could damage any investment in the South African economy; was an attempt to provide precedent for expropriation at “any price”; and should be the subject of a constitutional challenge. The need for the Bill in totality was rejected.

The chairperson, Ben Martins, complained that the CCCI submission brought “nothing to the party” with no alternative suggestions, “nor an attempt to understand the processes involved”. They should only discuss the Bill before them. The UDM stated that they doubted whether Ms Myburgh, an attorney, “had even read the Bill” and Minister Cronin, said that the input by CCCI was an embarrassment and a waste of the committee’s time. There would be a Bill tabled eventually, that was a fact that seemed to be accepted, but to contribute nothing was a pointless exercise, he said.

He expressed his view that Ms Myburgh should not even be allowed to respond to these different criticisms since her organisation either had not read or did not understand the Bill. He asked how the Bill could be “unconstitutional” when it directly enforced the “public interest”. What was being discussed, he said, was to define this with wordings necessary to resolve issues, achieve this, and move forward.

Minister Cronin said that CCCI had adopted an alarmist attitude, which he was continually at pains to oppose, and added that a wide majority of stakeholders who had intervened in the public hearing thus far, including Business Unity South Africa (BUSA), Agriculture South Africa (Agri-SA) and the Banking Association South Africa (BASA) amongst others, had raised useful contributions which had to be considered.

Minister Cronin said that he hoped that the media present would have the intelligence to understand the processes envisaged by the amended Bill and the suggestions that had so far come forward were part of a process that all countries had.  He condemned the attitude of CCCI towards an Act that had been in place but needed revision because of circumstances.

Institute of Race Relations

anthea jeffriesRight from the start of hearings, the first being from the South African Institute of Race Relations (SAIRR) represented by Dr Anthea Jeffrey, the point was that in the case of poorer folk the whole question of court litigation costs was not only a dubious issue but the time frame for lodging an appeal had to be extended from 60 to 120 days.

When asked why SAIRR should become involved in land issues, Dr Jeffrey replied that it was just a question of the unconstitutionality of the issues and for many years SAIRR had been involved in discrimination against black land ownership.

She said that under the present Act the validity of any expropriation could be challenged, whereas under the new proposals it could not; SAIRR was deeply concerned that all types of property could be expropriated; property that was expropriated “in the public interest” should be better defined and she asked that the new Bill should trump all other Bills.

She complained that Bill in no way assumed responsibility for loss of livelihood; loss of property and the unintended consequences of taking land. She reminded MPs that over 8.6m black people owned their own homes in South Africa.

Dr Jeffrey was asked what she meant by making the remark that “a number of interested organisations would be taking the current wording to the Constitutional Court if the wording should stand”. Would SAIRR really appoint silk and go to the Court, they asked.  She replied succinctly, “It totally depends what you put in the Bill”.

Earlier, Ms Vuyokazi Ngcobozi, Parliamentary Legal Advisor, reminded the Portfolio Committee that it needed to be mindful of Section 25(2b) of the Constitution which states that if parties did not agree on compensation, they should approach a court.

People could not afford to take the route of going to court, she said, and arbitration was expensive. However, this was a right which is provided for in the Constitution. Alternative approaches had to be considered, she said. There was, throughout the hearings, much debate on which courts should be used.

Eskom goes up front as reason

eskom logoEskom in its presentation said that it was currently experiencing significant delays in acquiring servitudes for the construction and installation of its infrastructure and this was largely due to an “ineffective expropriation process”. They quoted one essential transmission line to the Western Cape which had been held up for six years and one even more critical line to the Vaal Triangle industrial area held up for four years.

When asked why the land had to be bought, Eskom said in many cases this was the only route to acquire rights. At this point, the Deputy Minister responded that there was absolutely nothing against the acquisition of servitudes in the public interest but the issue remained the market value for such rights, whether ownership or servitudes, and the Bill itself therefore remained a Bill about expropriation of such rights.

SA Institute of Valuers

This point was made by Saul du Toit of the SA Institute of Valuers (SAIV) in urging both the committee and the department not to leave the notion of value as openly definable and to align it with market value for purposes of fairness and constitutionality and the rights of a property owner.

He found himself answering provocative questions from EFF members who stated the land was not the property of the current owners in the first case so the question of rights did not apply.

Mr du Toit urged members of the EFF to obtain a copy of “Grundrisse” by Karl Marx, in which Marx explained how “labour” actually allocates a certain value to land.  He again confirmed that it was highly doubtful whether some magistrate’s courts, which had to take a fair share of the load of expropriation cases away from costly High Court actions, had the experience but not necessarily the competence, to deal with expropriation matters.

One submission, from a valuator, Mr Peter Meakin, suggested that that all land, as in Hong Kong, should become state land and leased back to owners, thus completely changing the structure of taxes and rates into rent and leasing costs, making expropriation a much easier matter, providing just compensation for property only as the main issue. The impracticality of this suggestion led to very little debate.

Agric-SA- “process must totally protect”

agri-saMs Annelise Crosby, parliamentary representative for Agri-SA, said they “supported orderly land as a prerequisite for rural stability and inclusive rural development.” She stated that “expropriation should only be used as a last resort where negotiations had failed”.

Agri-SA had been totally opposed to the original 2008 Bill on the basis that it restricted access to the courts and was not in line with Section 25, 33 and 165 of the Constitution and she said that government “should be applauded for the extensive and inclusive consultation process which it undertook on the 2015 Bill before the showed significant improvements”.

However, expropriation without compensation, she said was traumatic, causing financial loss, emotional stress and suffering.  Agri-SA proposed that the full 100% of compensation offered be paid to the owner on the date which the state took responsibility of the property. Under no circumstances should an expropriation lead to insolvency on the part of the land owner because the compensation was not sufficient to settle the loan secured by the mortgage bond and settlement paid in time.

Claimants, she said, should as far as possible be placed in the same position as was the case before the expropriation. The definitions of “expropriating authority” and “public interest” were broad and left a lot of room for uncertainty.

Also Ms Crosby said, “due regard must be given to the owner’s right to privacy and these should therefore be resolved in the wording, submitted by Agric-SA, before the Bill was finalised if it was to be acceptable.”

Banking Assoc: Expropriation should only be for land

basaThe Banking Association of SA (BASA) went a stage further, stating the whole preamble to the Bill and the Constitution should be altered to state that the Bill be restricted to land, water and related reform as opposed to “other types of property”.

BASA noted since the instigation of the original Act the word “property” had become a debatable issue at law. This was agreed later by Minister Cronin and not even the Constitutional Court had been able to rule on this.  BASA pointed out that the Bill had to be aligned to the Constitution which called for “just and equitable” access to land which was missing in the proposed Bill, thus there being no adequate safeguard against abuse of the power to expropriate.

BASA stated that the new Bill left out the previous expression of “consequential loss” contained in the original Act and any replacement or amendment should be aligned to relevant international norms and standards. In terms of global regulatory requirements, they said, lenders are required to make use of market values against which mortgage loans are made and they could see “no valid reason” for leaving out the relevant clauses as contained in the original Act.

“Expropriation is a drastic measure which places an inordinately heavy burden on the shoulders of particular individuals. The full extent of their consequential loss must be taken into account, not disregarded”, BASA emphasised. They disagreed with the concept that any property that had been “taken without the consent of the expropriated entity or person” should not be taken into account.

BASA set out a full alternative set of wordings and concluded by urging government use caution and act in strict compliance with the Constitution, especially in cases when a heavy burden on the expropriated person became apparent. They concluded with the comment that South Africa could ill afford to have an Expropriation Bill that works against investment growth and the creation of jobs. This was not conducive to a satisfactory international business environment, they said.

Taking bits out of land destroys values

The South African Institute of Valuers (SAIV) further said that land assets should be considered as holistic units and should not be divided up by any expropriation process since the units thus divided, they argued, become non-viable and lost their use or value. The expropriation process, they argued, had to be related to market value for purposes of fairness and constitutionality.

Discussion again centered on what courts should be used, SAIV sharing its experience with the Gautrain expropriation where some 1,400 cases of expropriation were satisfactorily concluded by arbitration before the necessity of going to the courts arose.

SAIV called for privacy on compensation agreements, for if the amounts paid, the Institute said, were to become public, landowners could rely on data from previous cases and play these off against each other as well as against the state.

Minister Cronin’s consistent assurances throughout the hearings that the amended Bill was benign on the issue of expropriation and mainly for state utilities to complete infrastructure projects was challenged after a submission on the third day by Prof. Ruth Hall for Institute for Poverty, Land and Agrarian Studies (PLAAS)

She said the amending Expropriation Bill highlighted “the necessity to bring expropriation laws and theirRuth hall compensation components into line with the Constitution in order to remove the ‘veto power’ of landowners in relation to land reform and to ensure consistency in expropriations undertaken by the different arms of government.”

Prof. Hall said that the proposals, for the first time, properly phrased historical factors into a Bill, particularly regarding the shaping of compensation in order to address the apartheid legacy and the necessity for redress. She said a state “advisory panel on expropriation” could provide all citizens with a cost free framework for negotiations and arbitration in order to address the costly and “intimidating” court system.

Minister Cronin hastened to assure Prof. Hall that this legislation, like much of South Africa’s current legislation, had the main purpose of addressing improprieties of the past and was designed to continue the process of redress.

sapoaThe South African Property Owners Association (SAPOA), represented by Adv. Gerrit Grobler, felt that in broad terms the Bill conformed to international standards and the department was to be commended. “It is workable, practical and constitutionally sound but there were a few outstanding matters needed to be attended to and that the Bill could not go forward as it was.”

Originally only the High Court where the property was situated could determine compensation for all instances of expropriation, Adv. Grobler said, but in 1975 the Expropriation Act provisions allowed for compensation to be decided by a magistrate but subsequently were deleted from the Act because compensation mostly fell outside the experience of magistrates.  This had to be cleared up and decided upon, he said.

He advised that the 60 day notice of expropriation was too short and felt it would not meet constitutional muster.   It could not be expected that property could be valued and a claim for compensation prepared in such short time. He suggested 6 months in the light of court rolls being overloaded.

Mr M Ndlozi (EFF) said that SAPOA represented land and property of capitalists, some of whom were the main beneficiaries of the policies of a criminal government. SAPOA needed to have a conversation around the criminal acquisition of land, he said.

Adv. Grobler, when replying, said if a property owner who had paid full value for the property, whether in 1960 or 1975 and the property is taken away, then the owner would lose the market value which he or she had paid for the property. That was a fact. If the land was acquired for nothing, then this would be taken into consideration.

gerrit groblerAdv Grobler said he was not a politician but a lawyer and therefore could not discuss any member’s personal ideologies. He followed only the Constitution which outlined the principle that compensation for expropriation be paid.

However, SAPOA continued with the proposition that High Courts, or preferably arbitration beforehand, had to take place first in terms of the Constitution but the argument remained, as had been stated from the start of the hearings, that these costs were too high and the period in which a defence could be prepared before expropriation took place was too short. This had to be reconciled, he said.

Adv Grobler again repeated that the Bill was a good piece of legislation which needed a few technical adjustments. Magistrate courts were specifically good in matters relating to criminal law but not to expropriation. However, he stressed that the proposals would “not serve the bottom end of the market”.

Deputy Minister Cronin thanked the presenters for providing clarity on the jurisdictional areas of the High Court and the Minister notably remarked that it made sense to begin assessing things from a market value point of view.

On the Eskom matter, he said the problem with Eskom was that the entity was pursuing the “willing buyer, willing seller” approach and a couple of landowners held out to drive up prices. Therefore such a Bill as tabled was important to tackle land acquisition although it had to be in line with the Constitution.   Adv. Grobler was thanked by the chairperson, Ben Martins, for his thoughtful observations.

cosatu2The Congress of South African Trade Unions (COSATU) submission descended into an argument between their need for an answer why land restitution had “failed so far” and the fact that the land was “stolen” in the first place. A response was made by FF+ member, F Groenewald, that most of the land referred to had been stolen from the Khoi-San by such historical parties as King Shaka in the first place.

Chairperson, Ben Martins, called for order and asked both parties to continue their debate “at another timeBenedict Martins in a different place” since the issues were irrelevant to the meeting.

However, Mathew Parks, parliamentary coordinator at COSATU, submitted the view that government should never compensate theft and emphasised that arbitration should be able to take place prior to referring to a court at low cost. The present process was, moreover, described as long, costly and intimidating. This could be sorted out without changing the Bill.

He suggested as a solution the development of an advisory panel on expropriation which would provide actors in a dispute with a comprehensive framework, enabling the development of fruitful negotiations.

He described the recent criticisms directed against the Bill in the media as attacks lacking any foundation. He urged members of the committee to vote in favour of the Expropriation Bill as it stood.

In conclusion, Deputy Minister Cronin said that Department of Works and his Ministry Department had much benefited from the general support and advice contained in the majority of the submissions. It was a Bill which was now perceived as a nearly completed and was now a working document which any government needed to bring matters in line with international practice.

He added that the Freedom Charter “did not contain any reference to the possibility of nationalising any land” and this was a “red herring”.

Other articles in this category or as background
Expropriation Bill has now to be faced – ParlyReportSA
Zuma goes for traditional support with expropriation – ParlyReportSA
Expropriation of land stays constitutional – ParlyReportSA
Amended Expropriation Bill returns – ParlyReportSA

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Lumka Yengeni

National minimum wage hearings completed

Labour committee to get consolidated report…..

ncop

 

In the light of the fact that any legislation to be considered on the subject of a national minimum wage would involve all undertakings on a national basis and a major cross section of its citizenry, Lumka Yengeni, chairperson of the parliamentary portfolio committee on labour, finalised the provincial stage of her hearings.  Localised hearings were held in the Northern provinces last year and now in the balance of provinces after Parliament re-assembled.

The reason for this laborious process is that any such labour legislation would come under section 76 of the Constitution, which demands that debate and approval is not only at national level within the National Assembly (NA) but also with the concurrence of the relevant select committee of the National Council of Provinces (NCOP).

Hearing the people……

Such legislation has to have the approval of each of the nine provincial legislatures and such mandates are passed back to the NCOP and have to be found in tandem with any NA approval.   Yengeni is therefore sounding out the market place, as it were, for the idea of a national minimum wage

Whether it would require a separate Bill or an amendment to the LRA is a premature thought at this stage, probably the former in the light that it would need another commission, another departmental structure, probably a tribunal, enforceable laws with penalties and very specific regulations.

ANC seems set on changes

BUSA, Chamber of Mines, labour brokers, Agri-SA and others have already made submissions on a national basis before Parliament closed and the extraordinary thing was that a parliamentary committee should have taken upon itself to debate the whole issue just before meetings on the same subject scheduled by Deputy President, Cyril Ramaphosa.

Nevertheless, Agri-SA, in responding from one of the most problematic perspectives, told parliamentarians that a minimum wage set at a higher level than at present as part of a national application would result in a “considerable number of structural changes within the farming industry to accommodate what would undoubtedly be a call for higher wages in many spheres at many different levels of training and expertise.”

They warned that “to adjust and maintain their competitiveness and profitability” such a policy would be characterised by the shedding of jobs, increased mechanisation and the consolidation of farming units” – as had happened in the past they said.

FAWU zeroes in on agric

Food and Allied Workers Union said that any comparison to the minimum wage in nearby countries “was an insult” and said that that South African farmers on the whole were paying “poverty wages”. The cost of food to poorer families became a major debating area during the hearings, although there seemed to be tacit acceptance that the issue was to become an accepted fact on the labour horizon.

During the hearings recently in Gauteng, COSATU now seems to be suggesting remuneration somewhere in the area of R7,000 per month, submissions also coming from major industrial players in South Africa’s heavy industry sector. COSATU comments after the hearings where finally completed and in interview seemed to come “poker style” to an admittance that a minimum to them was seen at about R4,500.

Other articles in this category or as background
Agri-SA gives views on minimum wage – ParlyReportSA
Parliament debates national minimum wage – ParlyReportSA
Labour committee ignores strikes – ParlyReportSA

 

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Muscle may be added to LRA

Feature article….

BS000318LRA needs beefing up, says DA ….

A political confrontation is no doubt about to occur and possibly street unrest regarding the parliamentary notice now gazetted tabling a Bill proposing changes to the Labour Relations Act (LRA).

It also proposes empowering  labour courts to declare the cessation of a protected strike or to refer the protected strike for arbitration in the event of riot damage.

Public comment to Parliament was allowable until December 7 on the Labour Relations Amendment Bill PMB2-2014, which DA MP, Ian Ollis, intends introducing a private member’s bill.

Responsibility for violence

The opening wording of the gazetted notice stated that notice of an intention to “amend the Labour Relations Act (No. 6 of 1995) to make provision for trade unions to be accountable in the event of violence, destruction of property and intimidation by union members during a protected strike, and comments are requested.”

The background to the Bill notes that “statistics from recent protest action in the metal and engineering sector show that in the first two weeks of the strike, 246 cases of intimidation, 50 violent ‘incidents’ and 85 cases of vandalism were recorded.”

Views of Cosatu

Cosatu spokesperson Patrick Craven said, in response to DA statements issued as result of the gazette being published, “COSATU will campaign relentlessly, thorough the alliance, in Parliament, at the Constitutional court and in the streets, to ensure that such a law is defeated.”

By “alliance”, Craven is presumably referring to factors such as whether ANC MPs will join ranks and vote against the Bill at portfolio committee level when introduced.   This meeting will not occur until at least February and March 2015.

It is to be noted that as a private member’s Bill, this Bill is not tabled by the minister of labour, nor is associated in any way to any draft or proposal emanating from the department of labour.

How to strike properly

 The Bill, as proposed, provides for the accountability of trade unions in the event of violence, destruction to property and intimidation by union members during a protected strike.  The legislation also requires unions to educate workers regarding violence and on labour law procedures before strikes and by law unions are to provide marshals for crowd control who have been

ian ollisOllis, who is shadow minister for labour, says that his Bill also proposes that “courts would be empowered to stop a strike that is  properly trained for such and “to prevent criminals infiltrating union ranks”.excessively violent by forcing the parties into arbitration, to declare a violent strike as unprotected and to award damages against unions that have not implemented  such processes.

Bill not needed

The proposals also state that courts would be empowered to award damages against unions that have not implemented the law’s required staff education and crowd marshal training.

Cosatu flatly rejects the Bill. Says Craven, “Cosatu has consistently opposed violence, intimidation and damage to property during strikes and demonstrations, all of which are offences under existing laws and therefore require no new law to deal with them.”

The difficulty is holding unions to account for violence, a matter which is being attempted to be defined by Ollis, outsiders asking whether laws passed by Parliament are the answer or the problem.

There also appears to be two arguments, or camps of thought, on violence associated with strike action in South Africa.  Many commentators and a wealth of labour lawyers and have pronounced upon these arguments and no doubt they will emerge in Parliament in more detail should the Bill get to the point of being debated.

Two views

The points seem to be the extent to which community poverty and frustration extend into the situation, whether the answer to solve violence exists in the workplace and whether the ability of any law to criminalise contraventions of labour relations tenets can work and if this is the answer.

The kind of frustration that is evident become obvious, as media reported, when a union member exclaimed during the NUMSA metalworkers strike, “If we settle the strike and we get back to work we can save our company and we won’t lose our houses and our cars.   Why on earth would we go to court and start fighting again, risk everything, to get maybe a little bit of money compared to losing all our belongings?” he asked.  This point is raised by Ollis.

But damage to property is the least of the problems, says UCT’s humanities dean, Sakhela Buhlungu, in a speech in Cape Town recently. “The real thing is the loss of lives. With damages, in fact the beneficiaries, if this Bill goes through, will be the people who own property.   It is the poor people who will be caught in the crossfire because they are viewed as  scabbing. How do you compensate those people?  Do you say the unions must pay for lost lives?  You can’t quantify that”, she told her audience.

Poverty driven

Clearly the violence is well outside the arena of whether collective bargaining is working or not but the one view is that it is another manifestation of community frustration amongst those living below the breadline.

Buhlungu said to her audience, “Look at domestic violence; it is out of control.  Look at child rape; it is out of control.  Look at violence by the police against the public; it is out of control.  Violence is so pervasive that, in fact, it would be a surprise if a strike were not violent.”   Clearly, she said, the passing of laws will not resolve such issues.

On the same side of the coin also is the pragmatic view noted by Graeme Simpson, renowned labour writer of many years who in 1994, the year of independence, wrote, “The potential of the workplace as an agency for social change is severely under-utilised, and the narrowly conceived strategies to insulate industrial relations thus actively undermine the potential for relative peace (in the workplace).”

In the context of the violent strikes at that time (Checkers etc), Simpson said, “The vision of most employers has remained rather conservatively limited to futile attempts to insulate or protect the workplace from encroaching violence, rather than engaging in any way with the origins of the problem beyond the factory gates.”

Township stress

Simpson noted that research conducted then by the Centre for the Study of Violence and Reconciliation had shown that community-based violence (whether political or criminal) and the trauma associated with victimisation and stress resulting from potential or indirect victimisation, had the effect of broadly polluting workplace relationships.

There is a vital need – with attendant advantages – for business and trade union leaders, said Simpson, to engage jointly in interactive planning to harness the potential of the working environment as a proactive arena of peaceful social change, whilst simultaneously addressing the concrete needs of the most victimised township communities in general.

In the meanwhile the Centre for the Study of Violence and Reconciliation has evolved a four-pronged approach, it says on its current website, for dealing with the impact of violence on industrial relations. These programmes include the idea that the workplace is a place where violence-related trauma can be treated and training must be given to support and counsel traumatised co-workers.

Bigger business role

Communication, says the Centre, to generate information and sensitivity to the shared problems of violence and their influence on industrial relations is much required and importantly all companies should engage in community development and upliftment involving violence monitoring and conflict resolution processes beyond the shop-floor.

Also the Centre sees as an imperative that there have to be more community development initiatives from all businesses with workforces where worker or community representatives are party to decisions on allocating resources for corporate social upliftment programmes.

The second camp of thought clearly see Marikana as a Rubicon that was crossed which has so totally changed the labour environment that labour courts must have more powers to administer their decisions and that it is the unions that must change. The Bill proposes changes by criminalising failure to adhere to such amendments to the Labour Relations Act or at least making perpetrators culpable. Enough is enough, is the thought pattern.

Said Ollis in a DA statement as the Bill was tabled in Parliament by the Speaker, “A law is needed to ensure that unions be held responsible for all conduct that could potentially cause foreseeable damage to property, result in injury or loss of life.”

“Members of the public and business owners should thus exercise their rights and hold unions accountable for damage to property resulting from strike action,” he concluded.

Round the corner from Parliament, JP Smith, who is responsible for safety and security on the Cape Town mayoral committee said angrily a week or so ago, when accounting for all the damage done by strikers was being accounted for, whether by union members, just frustrated poor people or Cape skollies, “It is about highlighting the individuals, prosecuting them, exposing them to the media. What we need is for actions to have consequences for individuals.”

President’s response

Meanwhile, when speaking in Parliament, President Zuma did indeed condemn the violence associated with the Numsa strike but he gave no indication that concern about violence would result in fundamental changes to policy or legislation, as proposed by Ollis.

“We have enough instruments in our labour relations machinery to resolve labour disputes,” said Zuma to the National Assembly.

According to Patrick Craven of Cosatu, the “draconian principle” of criminalizing unions by default ignores the fact that employers are also at fault and he sees the threat to award financial damages against a union as having the potential to bankrupt unions and force them to disband, “which is surely what the DA, and its friends in business, want”, he added.

Most discount this argument as an exaggeration although it might appeal to Craven’s own audience.

COSATU needs collective bargaining

Craven added that in Cosatu’s view by empowering courts to force employers and unions into arbitration where strikes are excessively violent, or declare such a strike unprotected “would give the state unparalleled power to undermine collective bargaining and the basic human right to withdraw one’s labour.”

The department of labour recently released its Annual Industrial Action Report and this makes for compelling reading, says Johan Botes, director at Cliffe Dekker Hofmeyr, who no doubt will make submissions to Parliament on the subject of the new Bill.

“Most worrying,” notes Botes “is the fact that the percentage of unprotected strikes has increased from 2012 to 2013.   The report indicates that during 2012, 54% of strikes were protected whilst this number fell by 6% in 2013.”

“This may suggest a number of troublesome issues, including lack of regard for the law or the consequences of unlawful conduct, growing frustration and antipathy towards employers, or further support for the view that our collective bargaining processes and (SA labour) practices are in dire need of an overhaul.”

More jobs lost

Botes says it also worrisome that large groups of employees are being exposed to dismissal as result of their participation in unprotected industrial action whereas focus surely ought to be on how to save jobs and limit or prevent unnecessary dismissals.”

“The need for greater compliance with legal requirements before embarking on industrial action should be more emphasized, when considering the alarming reports of other unlawful activities connected with strikes, whether protected or unprotected, and which activities include assault, intimidation and causing damage to property,” he notes.

The ANC, as a party or alliance, has not made its views known at this stage on the Bill, nor any stance to be adopted by its party whips.
Ollis of the DA is convinced that Parliament must pass such an amendment to the LRA “where action could result in injury or loss of life”, thus ratcheting the parliamentary argument up a notch or two.

Fall back

Last word goes to the background of the Bill itself which states, “Though the Regulation of Gatherings Act 1993 the law imposes restrictions and prohibitions upon gatherings and demonstrations that cause “riot damage” to third parties, the current provisions within the legislation fail to address instances where damage caused to persons and property by strikers in the course of promoting the objects of the strike and which does not necessarily occur within the structures of a gathering or demonstration.”

Ollis says, “Indeed, harm caused by strikers often occurs underhandedly at strike-breakers’ homes and as strike participants move to and from strike locations – violence and damage to persons and property therefore occurring outside the formal strictures of a sanctioned strike or gathering, yet acting in furtherance of union-supported collective action.”

He concludes, “This Bill thus seeks to provide a statutory duty on trade unions to take reasonable steps to prevent harm to persons and property within the Act.”
Other articles in this category or as background
http://parlyreportsa.co.za/labour/labour-committee-turns-away-strikes/
http://parlyreportsa.co.za/labour/labour-relations-act-changes-passed/
http://parlyreportsa.co.za/bee/rumblings-in-labour-circles-on-bee/

Posted in Facebook and Twitter, Labour, LinkedIn, Mining, beneficiation, Trade & Industry0 Comments

Labour : nobody at top biting the bullet

Parliamentary labour committee gives hint…..

mildred-oliphantLabour Minister Mildred Oliphant said in her budget vote speech that she would meet with the trade union leadership to discuss the “adversarial nature” of the country’s industrial relations and explore ways to arrest the “potential threat” to the system of collective bargaining. With the Nedlac process under scrutiny, South Africa heads towards an election with a Parliament not quite sure what is really happening.

Meanwhile, after months of painstaking negotiations and re-drafting of South Africa’s new labour laws and with the amendments under the Labour Relations Act nearing finalisation and adoption, suddenly an adversarial attitude was also adopted by the governing alliance members over contentious and much argued about issues such as labour broking.

So, with attitudes hardening, business has again lost track of indicators regarding government’s views on labour matters. A swing to the left was previously the concern but as political commentators now note, a swing to the nationalistic right is even more worrying.

What relevance then her speech?

Minister Oliphant  also said in her address that her department would host a labour relations indaba to enable stakeholders and role-players to engage regarding the future of collective bargaining in South Africa but a reading of recent parliamentary views stated by ANC MPs would change the ground rules for such an engagement yet again. Quite clearly, with an election forthcoming, the pack of cards has suddenly been thrown into the air. Oliphant continued…….

“We want to generate greater interests and concerns of social partners in respect of labour relations conflict, and identify measures to strengthen labour relations and dialogue to achieve labour market stability and peace,”  adding that the department of labour (DoL) was working closely with NEDLAC and the CCMA to achieve this.

Smoky glass

The minister noted that her budget vote took place at a critical time, when South Africa was entering the collective bargaining season, which seemed a pretty pointless thing to say and then compounded the totally inert contribution by adding that “Looking at the year ahead, that all stakeholders will  have to work together to achieve a peaceful environment in labour relations and collective bargaining.”

Finance waves a finger at somebody

pravon gordhanShortly afterwards when introducing the debate on his budget vote in the National Assembly, finance minister Pravin Gordhan said South Africa “was at a cross-roads over renewed labour unrest in the mining sector” and something needed to be done or the country would lose jobs and investor confidence, and companies would close. ‘

In his medium term budget statement, he was at pains to re-assure the investing community that budget deficits were under control and that SA was walking the big talk. But there was no reference to the big issue. A bloated public service, way out of proportion to the size of the community in South Africa, has a  pay rise coming.  This is more than a bump in the road head, it massive pothole to be negotiated.

“Concerted action by organised labour, business, civic leaders, and government is needed in the coming months , said the minister. “There is no role for complacency here”, he warned. Gordhan reiterated that labour unrest and stoppages at mines contributed “to much of the weaker economic performance in 2012”, which was compounded by job growth of only one percent.

“We are all in this together. If we do not resolve our labour relations challenges we will be losers. We will see deteriorating confidence, job losses, and business failures.”

Finding sensible solutions, Gordhan said, to the labour strife would benefit all. “But if we find a balanced, fair, socially responsible solution, we all stand to gain and we will see higher investment, higher employment, and improvements in living conditions. This is the choice that lies before us.”

Misfire, or was it?

zuma2Then spoke President Zuma in a special extra parliamentary speech from Pretoria, who also called on mining participants in the wage talks to play a stronger role, saying government could not take sides in the turf war between unions. His continued reference to the minister of finance’s speech earlier in Parliament was the anchor point of what he had to say, which it turned out to be very little.

In the meanwhile, minister in the presidency responsible for performance monitoring and evaluation, Collins Chabane, told parliamentarians in his budget vote speech that the National Development Plan (NDP), endorsed by COSATU or not, would form the basis of strategic framework for the next five years for government focus, the NDP forming the basis of nearly twenty budget votes speeches in Parliament in the last three weeks.

The apparent focus by government on the NDP and COSATU’s renewed platform of referring back to the Freedom Charter, was also evident during a speech by Trevor Manuel, minister of planning and one of the main architects of the NDP, who told his audience “We should guard against be waylaid by all manner of self-serving agendas that direct us away from building the desirable plan”.

VaviMeanwhile, Zwelinzima Vavi, general secretary of COSATU, told his audience, “Four out of ten people are unemployed and 19 years after democracy, we have become the protest centre of the world, a country still far from achieving the economic demands of the Freedom Charter.” He told his audience there was a lot to celebrate but all COSATU wanted was for the wealth of the country to be shared.

No mention of the NDP. Nobody stepping to the footplate.

To-ing and fro-ing on labour issues appears to be average activity for politicians, including the President, and at the moment, with nobody sticking their heads over the parapet, Parliament heads towards an election with business sitting in a vacuum and the international rating bodies not quite are what we are up to .

Posted in Cabinet,Presidential, Facebook and Twitter, Finance, economic, Labour, LinkedIn, Mining, beneficiation, Public utilities, Trade & Industry0 Comments

OUTA goes to supreme court of appeal on Bill

OUTA seems to have forgotten Parliament….

The decision by the Opposition to Urban Tolling Alliance (OUTA) to spend many hundreds of thousands of rands of public money to obtain a judgement from the North Gauteng High Court to set aside e-tolling on the basis that legislation making e-tolling possible was not debated in the proper manner seemed at the time a little odd when OUTA did not  itself  make a submission to Parliament on the legislation or accept a  debate with portfolio committee on transport when invited to do so.

The fact that the decision by the Gauteng High Court has been reversed still excludes Parliament which seems to be yet another example of living with the belief that the world ends at the Jukskei River.

OUTA seems to be unaware of the fact the Transport Laws and Related Matters Amendment Bill is a national Bill which has been tabled; the matter is a national issue and that Parliament is the home of an independent parliamentary debating process surrounding the anchor legislation, whatever inputs may come from SANRAL, OUTA, the minister of transport or threats from COSATU.

According to the records produced at a meeting of the portfolio committee on transport to finally debate and approve the Bill, the committee spent nearly R200,000 on advertising the request to “Have Your Say” on the Bill, the normal insertions for a Bill known to be contentious.  The record also shows that most of this spend was on national dailies and the weekend press, as it so happens mostly printed in Gauteng.

The scurrilous suggestion by COSATU that no such advertising took place was a lie, possibly placed by COSATU to influence OUTA, and reflects the fact that COSATU  knows full well that Parliament was the home for such debate.

That’s why COSATU was there in full strength, one of two parties who bothered to appear in Parliament.   BUSA failed to appear in person, submitting comments in writing, which kind of submission becomes a very watered-down affair.

The fact that the South African Local Government Association (SALGA) did make a full submission (and a very good one) and succeeded with an effective amendment that whenever and wherever a toll is built a full debate must take place with the municipality or local authority, was accepted by Parliament. Which seems to prove a point.

Also the Bill was re-worded to the effect that alternative routes around the affected toll road are to be demarcated. Well done SALGA.

COSATU’s own suggestion to stop e-tolling on the basis of selection against the poor with no constructive suggestions as to how national roads were to be future-funded led to a rejection by members of the transport committee.

SALGA concluded in their submission that a lot more work needs to be done on advising the public how e-tolling  works; advertising on why it is necessary; pricing structures to be seen visually on approach; what any alternative routes are; what the discounts are about and how and when to buy an e-tag and if it is always necessary.

SANRAL, who were present at both the hearings and subsequent debates accepted privately this advice given by SALGA to the satisfaction of the portfolio chairperson and although SANRAL had no speaking role in the subsequent legislative debate, once again their presence was felt.

Even the parliamentary portfolio committee admitted in conclusion when the Bill was approved that nobody really wanted e-tolling but were clearly angered by the OUTA and COSATU suggestion that “nobody was informed on the Bill” and even more curious to know why OUTA itself was nowhere to be seen in Cape Town.

Presumably the Bill will go to the National Assembly now that Parliament is re-assembling and concurrence eventually sought from the National Council of Provinces. Presumably also OUTA is hoping that the Supreme Court of Appeal, where the matter is now headed, will instruct the minister to withdraw the Bill.

Posted in Cabinet,Presidential, Finance, economic, Justice, constitutional, Trade & Industry, Transport0 Comments

e-tolling Transport Bill held over

Changes made after parliamentary hearings.

Department of transport spokesperson Tiyani Rikhotso told a media briefing on e-tolling ecently that the portfolio transport committee was to completed two days of public hearings on e-tolling and the Transport Laws and Related Matters Amendment Bill in Parliament.   As  a result Parliament has given notice for the matter to be brought before National Assembly with certain further changes scheduled.

In hearings that took place within the portfolio committee on transport under Adv Johnny de Lange as chair the Bill was adopted in debate, although opposition members abstained from voting in favour since caucus support on what was considered by them as possible and reasonable  could not be approved in the light of time restraints, this being the reason given.

The Bill, subject therefore subject to final approval by Parliament still stands, as does the issue of e-tolling on a national basis.

“The matter has been postponed for for further discussion”, Rikhotso said, referring to the fact that the NA had yet to agree or not to the withdrawal of the Bill or whether more changes were to be accepted brought forward by the portfolio committee as a result of public hearings which took place and further possible debate.

SALGA agreeable in part

Issues at the public hearings with regard to e-tolling mainly involved the practical application and whether SANRAL was exceeding its mandate. Only two oral presentations were heard although some ten papers or submissions were circulated, including one from Business Unity SA.     What is clear, however, is that despite all the argument and debate, the actual process of e-tolling will be hard if not impossible to undo.

The oral hearings included a South African Local Government Association (SALGA) submission presented by Mthobeli Kolisa, executive director of municipal infrastructure services, South African Local Government Association (SALGA) and also from Ms Jane Bennett, affiliate support coordinator, COSATU. No oral submissions were received from OUTA, although it was unclear if written submissions were made.

SALGA said its association of 278 municipalities was primarily trying to achieve the objective of ensuring that the legislation would provide for studies on the impact of the diversion of traffic from proposed urban tolled roads into local roads. These studies must address the likely congestion and resultant costs of road maintenance and traffic management, and access to opportunities for life on the part of affected communities.

The studies, they said, must form the basis for decision making regarding whether or not to toll a road, and to determine what mitigating measures were needed to address the negative impacts if the tolling was to go ahead.

Whilst SALGA supported the proposed bill it wanted to see additional clauses that also affected the mandate of the South African National Roads Agency Limited (SANRAL) and National Roads Act which called for the minister’s approval for any declaration in partnership with affected municipalities.

These had to include in their view studies on the likely impact of the contemplated road tolling on communities’ access to livelihood opportunities; local roads in terms of diversion and related maintenance and traffic management costs and for such studies to be used as a basis for public consultations and such conditions had to be written into the proposals, SALGA said.

Bennett of COSATU was of the opinion that without the Bill, the e-toll would not be able to proceed and suggested strongly to parliamentarians to take the decision to reject the Bill. She said the issue of a Bill to make e-tolling possible had been rushed through as an afterthought, just to make the matter legal and that it ran counter to a number of basic principles of law, not the least the National Credit Act.

COSATU maintained there had been “little sincerity in the consultation” and tolls like the Gauteng Highway Project and others in the country, no doubt to follow, would add a huge burden to the already impoverished poor. There was also a suggestion of profiteering, she said. However the overall feeling of the portfolio committee was that the COSATU suggestions were insufficiently persuasive to halt national road development on a user pays basis.

COSATU raised issues surrounding the application of the provisions of the Cross- Border Transport Road Agency and the lack of restrictions on how tariff increases would be applied in future. COSATU strongly objected to the parliamentary procedure involved and which had excluded input from the provinces, meaning that the Bill had been tabled as a section 75 Bill which does not call for provincial hearings and mandates through the NCOP.

At the hearings, both the South African National Roads Agency Limited (SANRAL) and the Department of Transport (DOT) questioned the amendments sought by SALGA. They stated that the SANRAL Act already required SANRAL to inform all affected municipalities about the tolling of a section of national roads, and that this already catered for SALGA’s request.

From parliamentary papers it appears that the Transport Laws and Related Matters Amendment Bill could have been withdrawn from the National Assembly order paper at the last minute before the discussions but despite this fact, subsequent debate did in fact take place place and approval by the portfolio committee on the Bill was obtained by a majority vote. This means  that whilst the legislation may be amended, e-tolling itself as a process will probably roll on providing concurrence of the National Council of Provinces is agreed in early 2013.

Parliament’s deliberations on the bill in the NA will continue in the New Year it is presumed  after Parliament reconvenes on February 10, and the future of the legislation as it stands then debated further. In the meanwhile the debate will no doubt rage on at community level.

The difficulty could well be that the amendments sought by SALGA and perhaps by the portfolio committee after deliberations could affect the anchor legislation itself and more than one piece of law.

Posted in Cabinet,Presidential, Land,Agriculture, Trade & Industry, Transport0 Comments


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