Finweek English Edition - - INSIGHT - Marc Ash­ton

The South African Government has devel­oped a myr­iad of rules and reg­u­la­tions to tr y and “man­age” the econ­omy and help push the agenda of trans­for­ma­tion and worker’s rights. How­ever, th­ese self-same rules and reg­u­la­tions are now be­ing turned on those who put them in place and it is go­ing to put Government and busi­ness on an un­pleas­ant col­li­sion course.

This week the Free Mar­ket Foun­da­tion (FMF) f iled a con­sti­tu­tional chal­lenge to South Africa’s Labour Re­la­tions Act of 1995 in the Gaut­eng North High Court. The re­spon­dents were listed as the Min­is­ter of Labour; the Min­is­ter of Jus­tice and Con­sti­tu­tional Devel­op­ment, and Bar­gain­ing Coun­cils as de­fined in the Labour Re­la­tions Act.

FMF chair­per­son, Her­man Mashaba, told the me­dia: “This labour law chal­lenge... is about giv­ing peo­ple the free­dom to de­cide for them­selves what kind jobs they want to do, what amount of pay they are pre­pared to work for, and what con­di­tions they are pre­pared to work un­der. It is about their free­dom to make their own de­ci­sions about their own lives. It is the sole right of un­em­ployed peo­ple to de­cide what jobs they con­sider to be bet­ter than no job at all... to de­cide what job is a ‘ de­cent’ job. No one has the right to take away that de­ci­sion-mak­ing power from des­per­ate peo­ple. It is evil to do so.”

Will the FMF suc­ceed with its chal­lenge? It’s un­likely, sim­ply be­cause it’s go­ing to be f ighting on too many fronts and will ul­ti­mately have to nar­row down ex­actly what it’s ar­gu­ing for. Government also con­tin­ues to be very much a “work­ers” party and de­pends on the idea of pro­tected labour – although there are signs that sup­port for Government’s poli­cies is weak­en­ing.

Government can also very quickly point out that the pri­vate sec­tor has yet to prove it can cre­ate jobs and that the ma­jor­ity of jobs cre­ated in the last few years have in fact come from Government-driven poli­cies.

At the moment, the FMF chal­lenge has more to do with the prin­ci­ple that busi­ness in SA is now pre­pared to go head to head with Government and use the Con­sti­tu­tion and l abour l aws to chal­lenge poor pol­icy de­ci­sions.

Sim­i­larly, the re­cent an­nounce­ment from Comair that it would go the le­gal route to take on the “bailouts” of SAA de­mostrates that busi­ness is now pre­pared to take off the gloves and get stuck in when the play­ing fields aren’t level.

Will Comair win? Al­most def­i­nitely not, but what it may well do is re­mind min­is­ters who at­tempt to rush through leg­is­la­tion that there may well be con­sti­tu­tional and le­gal is­sues when they try to “force” busi­ness into cer­tain meth­ods of op­er­at­ing.

It is an im­por­tant time for South African busi­ness. The Na­tional Devel­op­ment Plan (NDP) is backed by a num­ber of par­tic­i­pants, both in the pub­lic and pri­vate sec­tor, and we need to build on this mo­men­tum. Tough dis­cus­sions are go­ing to be held and it’s es­sen­tial for all stake­hold­ers to come to the ta­ble with so­lu­tions rather than sim­ply look­ing to wear each other down in pro­tracted f ighting.

Busi­ness has come out f ighting and it is good to see that Government is no longer be­ing treated with kid gloves. How­ever, co-or­di­na­tion and goals are go­ing to be the key to de­liv­ery here.

Her­man Mashaba

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