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Analysis: Concourt ruling on marches

Opinion,Stephen Grootes
Stephen Grootes
Opinion

Unions could now change some of their tactics for fear that they will be forced to pay up

Yesterday's judgment in the Constitutional Court that trade unions can be held financially responsible for damage caused during their protests could mark a sea change in the way marches are held. While many unions have held peaceful marches around the country, others have been accused of not doing enough to prevent their members acting violently.

Unions could now change some of their tactics for fear that they will be forced to pay up.

But the ruling is just one of a series of unfolding processes that could change the labour relations playing field.

All of the Constitutional Court judges who heard the case of the South African Transport and Allied Workers Union and Another vs Garvas and Others agreed that unions cannot escape blame for events that occur during protests they have organised.

Key to the majority judgment, written by Chief Justice Mogoeng Mogoeng, is the point that while innocent bystanders and property owners have no defence against acts of violence, the organisers of such protests could decide not to proceed with the march. In other words, there is an action they could take that would prevent the violence, and thus any financial liability they could incur.

The issue of whether violence can be foreseen is key to the judgment. If the South African Municipal Workers Union (Samwu) were to hold a march in which rubbish bins were upturned in Johannesburg, the city could argue that this had happened many times before and was foreseeable. As a result, Samwu could be forced to pay up. This would put the onus on Samwu to make sure no such events occurred.

This will make it more expensive for unions to have protests. They will need to have more marshals and better organisation.

Yesterday’s judgment will also have an effect on the rhetoric used by union leaders during strikes. Calls to members to prevent an opposition party marching on their headquarters could be interpreted as a cry to violence. If violence resulted, there would be financial implications.

All of this could limit one of the biggest weapons of the union movement, the large angry march on employers’ headquarters.

However, this is not the only threat posed to unions. Since 1994 they have enjoyed an almost unlimited right to strike and protest. The original draft of the Labour Amendment Bill included a clause compelling unions to poll their members before going on strike. It also contained provisions on violence during strikes.

Congress of South African Trade Unions (Cosatu) general-secretary Zwelinzima Vavi had called it "the biggest threat to the right to strike since apartheid".

Cosatu now claims that those provisions have been removed from the bill. This is a function of its political power at the moment. But the fact that those clauses were there in the first place is an indication of the African National Congress’s frustration in dealing with unions. The party is finding how hard it can be to govern in a coalition in which one is responsible for providing services but cannot take action to ensure that the people employed to provide them do their jobs.

Should President Jacob Zuma no longer feel that Cosatu is a vital constituency for him, or should its power wane for other reasons, the union federation will find it much harder to protect the rights it currently has. Those clauses could be re-introduced, which would limit its power more severely. The union movement could then find that yesterday’s judgment is just the thin end of the wedge.

Stephen Grootes is a Senior Eyewitness News Reporter. Follow him on Twitter @StephenGrootes

This column first appeared in The Business Day.

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