Are court delays an abuse of the legal process?

JUSTICE delayed is justice denied. For justice to be done, it must be seen to be done. In the Free Market Foundation’s (FMF’s) labour-law challenge, are these time-honoured maxims being violated by the government, bargaining councils and the Congress of South African Trade Unions (Cosatu)? This is a serious question. More surreal is whether the government truly wants the labour minister to act like a mindless automaton and make, without the time to think, what amounts to law when told to do so by private colluders.

These questions reached a crescendo yesterday. Nearly seven months after proceedings were instituted, none of the nearly 50 parties in the FMF’s constitutional challenge had filed any essential documents (answering affidavits).

Is this failure due to incompetence, disinterest, calculated abuse of law, or a genuine inability to meet generous deadlines?

The FMF’s objective is to have one word in section 32 of the Labour Relations Act changed (“must” to “may”). The aim would be to allow the minister, before she acts, time to consider the implications for the unemployed, small businesses, marginal workers and others if contracts between unions and employers are extended to include nonparties.

Employers and employees enjoy exemption from competition law, which allows them to collude. But, having colluded, they may then force the minister to impose their collusion on noncolluders.

The FMF’s argument is that this unconscionably demeans and insults the minister.

Government ministers should always be obliged and allowed to think before they act.

Besides this fundamental principle, the FMF’s greater concern is the effect of this law on SA’s most vulnerable citizens.

Deals between labour and business elites can have devastating consequences if imposed on others in hugely divergent circumstances.

If applied to retailing, the Labour Relations Act would allow Woolworths and Pick n Pay to collude and then impose their private deal on all other retailers, from Spar, Checkers and Makro to local supermarkets, corner cafés, country stores, convenience stores and even spazas and street vendors.

Usually, the only respondent in such a case would be the government. Despite the FMF’s view that there was no need to do so, to ensure that justice was seen to be done and not delayed, it cited all bargaining councils when it instituted action.

It agreed not to oppose Cosatu’s application to be admitted and to accept Cosatu’s answering affidavit before a ruling on its application. Usually, such extraneous parties would be accommodated as amici curiae (friends of the court) and confined to presenting purely legal arguments.

With no affidavits being received within seven months (including three extensions), from a single party, the FMF applied yesterday for the matter to be placed on the unopposed court roll for default judgment. It will oppose any application to the court for more time.

Rather than offering an opinion, this piece asks: Do parties that delay proceedings undermine and abuse legal process? Deadlines exist to prevent justice from being denied through delays. The victims of injustice in this case are, according to the FMF, not only 7-million destitute jobseekers, but thousands of entrepreneurs being driven out of or precluded from entering business.

Law allows for extensions when parties, despite good-faith effort, cannot meet deadlines.

This case is now being delayed by costly proceedings in which the court must rule on deadlines instead of constitutionality.

SA has the highest persistent unemployment rate in the world. Like FMF chairman Herman Mashaba, decent South Africans do not want to look back one day and say: “I saw what was happening, and I did nothing about it.”

Thanks to Mashaba’s initiative, the Constitutional Court will eventually hear the minister’s preference: “I do not want the right to think about what I do.”

Louw is executive director of the Free Market Foundation.