7 - 11 July 1996
The labour provisions that had nearly brought down the Constitutional Assembly (CA) negotiations once again came under fire, this time in the court setting. Advocate Malcolm Wallis, for Business South Africa, sensitively dropped the phrase, ‘the right to lockout’ but argued essentially for the same thing – management’s right to exercise economic power in pursuit of collective bargaining. This, he said, was the equivalent to the employees’ right to strike, which had developed over the years into a ‘most formidable weapon, capable of inflicting grievous harm on the employer’. Advocate Martin Brassey, for COSATU, presented a cogent history of black worker disempowerment and emphasised the union’s long-stated objection that this clause would entrench the age-old power of the bosses but now in the name of equal treatment.
Powers to amend the Bill of Rights
The following day, the amending of the Constitution again was an issue. The judges themselves raised concerns about the fact that a two-thirds majority could amend the Bill of Rights. Would this allow the Bill of Rights to be sufficiently protected? This led to further questions about whether the core of the Constitution was safe from amendment and whether the Constitutional Principles would still apply once the Constitution was certified. The latter point was argued by Johannesburg attorney Peter Leon on behalf of the Association of Law Societies which represents most of South Africa’s attorneys. Justice Mokgoro asked whether the intention was not that once the constitutional text had been certified, ‘these values are in it’? Leon replied: “That is correct, but there is nothing to stop the text – and those values – being changed by a two thirds majority.”
Socio-economic rights and separation of powers
The separation between the legislature and the judiciary was highlighted in the discussion on socio-economic rights. For the first time, sections 26 – 29 of the Constitution included socio-economic rights which was unusual in a constitution. The question that arose was whether the Court could constitutionally discipline the legislature for not adopting laws securing these rights or whether this would constitute a transgression of the separation of powers. This led to a lively debate in Court. The Legal Resources Centre argued for the justiciable socioeconomic rights. The Free Market Foundation strongly opposed and argued for the separation of powers. The Judges grappled with the issue – what must the court do if the legislature does not take reasonable steps? ‘If Parliament refuses to follow a court order, there would be a constitutional crisis – the court does not have an army.’
The Court may then be dependent on political and public pressure to get Parliament to comply.