Department of Labour: Toothless as a snail

by Oct 15, 2014Magazine

President Zuma has signed a contentious round of amendments to the Labour Relations Act into law. After protests from Cosatu, the government withdrew the proposal of compulsory secret balloting among union members before a strike, as demanded by the DA and the business press. This employer demand was also raised during the five-month platinum strike, from April, as a demand that the workers should vote on stopping the strike.

The call for strike ballot seeks to weaken unions and workers by undermining the very nature of collective struggle, and at the same time to deprive workers of access to the single most important factor in deciding whether to strike. This is the ability to see and feel the collective power they have when they stand together.

On the other hand, the government did not ban labour brokers (called “temporary employment services” in the Act), arguing that they now will be regulated. It is worth asking whether this issue is now settled. In the new section on labour broking, the phrase “if not justifiable” comes up repeatedly. If someone is hired on a job longer than three months, he or she “must be treated on the whole not less favourably than an employee of the client performing the same or similar work, unless there is a justifiable reason for different treatment”.

Toothless as a snail, the department of labour (DoL) is not imposing the eight- or nine-hour workday on the employers, although it is a law. Everywhere in the country, workers endure ten to 15-hour days. In Western Cape, farm owners are effectively crushing the new minimum wage through evictions, dismissals of unionists, and new fees for everything. Since 1998, the DoL has refused to implement a provision of the Employment Equity Act that would close the apartheid wage gap between high- and low-income earners.

Of South Africa’s 500 000 mine workers, 150 000 are “contract workers” earning roughly 60% of the pay of permanent employees. If labour broking is too profitable to be stopped, it is likely that is also too profitable to be regulated, and certainly not by the toothless DoL.

Egyptian activists go on hunger strike

Leading Egyptian activist Alaa Abd El Fattah, jailed by the military authorities, began a hunger strike on 19 August. From 1 September, he has been joined by 33 other imprisoned activists protesting the brutality of their treatment.

Their imprisonment and now their hunger strike starkly highlight the fate of the democratic uprising that overthrew the Hosni Mubarak dictatorship in 2011. Alaa Abd El Fattah told his family that he would no longer cooperate with the “country’s broken legal system”.

Abd El Fattah has been charged numerous times, while struggling first against Mubarak, then the Muslim Brotherhood and now the military dictatorship of General al-Sisi.

Abd El Fattah and 24 others were sentenced to 15 years in prison in June this year. He has been jailed pending a retrial on false charges of rioting, destruction of public property and using violence against security forces. This is now his third time in prison since the 25 January 2011 uprising and it is likely to be the longest and most difficult.

His younger sister, Sanaa, is also on trial for violating a protest law issued last year banning unauthorised demonstrations and has joined him in the hunger strike. He and his sister come from an activist family. His father, Ahmed Seif el-Islam, a prominent human rights lawyer, died on 27 August; he was active against the regime of Anwar Sadat, which was infamous for signing a peace deal with Israel.

Just before the 2011 mass uprising, while staying in South Africa, Abd El Fattah commented on the lessons he learned from South Africa’s transition. He was under no illusions about what was taking place in South Africa following the advent of democracy, or what was the likely fate of the Egyptian revolution.

“As heartbreaking as it was to see that it didn’t live up to the people’s ambitions, I learned that this is the fate of the revolutions,” he said. “You can’t be cynical, and you have to respect the sacrifice of the people and measure the achievements of the revolution in comparison to the past.”


“Use the law for as long as it’s available, but don’t substitute the law for active class struggle.” If this sounds familiar, it’s only because it is. It’s a lesson chiselled into the long history of the law. Like democracy, the class nature of all laws guarantees that progressive laws last no longer than their “excessive” use.

These thoughts arise from the news that a judge in the US has just thrown out a case against some of the largest transnational corporations in the world that supported the human rights abuses of apartheid South Africa. Apart from the fact of the case having been dismissed, one might ask how a case against South African based corporations ever got to be heard by a judge in the US in the first place.

The answer takes us all the way back to the age of piracy in the 18th century. To combat this problem, the US passed a law in 1789 – the “Alien Tort Statute” – that allowed non-US citizens to take action, in the US, against US citizens for crimes committed outside of the US.

The origins of the court case, now dismissed, go back to 1997 and the campaign by Jubilee South Africa for the cancellation of the odious apartheid debts that our then-new government had volunteered to pay back. This debt cancellation campaign was part of a broader campaign for reparations for the crimes of apartheid.

Racially imposed cheap labour, along with “pass carrying Bantu” who was exempt from the provisions of the (then) Labour Relations Acts – including the right to form trade unions and take strike action – meant super profits were guaranteed for some of the world’s largest and well known corporations. These corporations – such as car manufacturers and computer giant, IBM – were happy not only to be in apartheid South Africa but to provide the state with some of its instruments of oppression.

Radical lawyers realised that the Alien Tort measures were still part of the laws of the US and that they could be used by the reparations campaign, which aimed to take court action in the US against US companies that had been so ready to benefit from apartheid for their profit maximisation.

The companies were outraged by this action. They appealed to the US government, which immediately sought the assistance of then President Thabo Mbeki. Mbeki was quick to oblige; he argued that such action was insulting to and an infringement of South African sovereignty. But he acknowledged that he couldn’t stop the legal action.

Twelve years after the case was first formally considered by a US court, the US Supreme Court has now limited the scope of the Alien Tort Statute. Business is again free to maximise its profits anywhere in the world without fear of an anti-pirate measure from the same year as the French Revolution.

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