Things are starting to get really nasty in the court challenge by the Free Market Foundation (FMF) to Section 32 of the Labour Relations Act. This week clothing and textile union SACTWU put the court case firmly onto the agenda in its wage negotiations. It insist employers in the sector distance themselves, in writing, from the FMF’s court action plus cancel their FMF memberships and stop all sponsorships to the Foundation. FMF chairman Herman Mashaba is incensed at what he believes is illegal intimidation. And as you’ll see in the interview (or read in the transcript) he’s not terribly taken with the lack of support he is receiving from the business sector. Herman came through to the CNBC Africa Power Lunch studio today to fill us in. – AHÂ
ALEC HOGG: The Southern African Clothing and Textile Workers Union’s (SACTWU) proposal for the Bargaining Council agreement seeks to impose illegal terms on all employers in the clothing and textile industry or at least, that’s the view of the Free Market Foundation whose Chairman, Herman Mashaba, is with us in the studio. Herman, I guess one’s hair is being pulled out more and more…and I see you don’t have too much of it left now with what’s going with this court action where you’re trying change things. And you’re being threatened, intimidated – according to the statement you put out – by a trade union who feels that your challenge to the Labour Relations Act is beyond the pale.
HERMAN MASHABA:  In fact Alec, you would really wish you were dreaming. Every time I talk to my colleagues and people around me, I tell them this dream doesn’t want to go away. If you really look at the developments happening in our country at the moment, it’s extremely worrying. When you have a civil organisation/body such as we are, trying to get all of us as South Africans to really respect this Constitution, which all of us worked so hard to develop when we must obviously respect this and we have people in government saying ‘no, we should not’, I think it’s really quite worrying. I firmly believe that the trade union movement in this county believes that the Free Market Foundation does not have a case. They are the ones who obviously have to force us to come to court and the courts to make the determination. However, for them, actually expecting other South Africans to disregard the rule of law and the total disregard for our Constitution…it’s a very sad day for our country.
ALEC HOGG: Just tell us the story. You’re going to court to just get one word changed in Section 32.2 of the Labour Relations Act, from ‘must’ to ‘may’, which means that there will be discretion on the Minister’s behalf.
HERMAN MASHABA:  You can imagine in South Africa, Alec, you can imagine if we have a country where the Minister of Labour is forced by private parties to enforce their private agreements on other people. We’re not even saying that the Minister should not…we’re saying to the Minister ‘please consider the implications of this private agreement on other people’. It looks as though the Minister of Labour is not interested in really complying with a real and fair request.
ALEC HOGG: So you’re taking that to the Constitutional Court.
HERMAN MASHABA:  That is what we want to do, but at the same time, we’re not really getting their cooperation, or for them to respect the due legal process in the country to submit their papers in court, so that we can go to court and really give South Africans an opportunity to listen to our court case.
GUGULETHU MFUPHI: Â Are you aware of the reasons SACTWU is objecting to this?
HERMAN MASHABA:  I don’t know. In fact, I was surprised the other day, to come across this document being sent to employers in this country to distance themselves, disassociate, and not allow this court case to go to court. They’re expecting the business community in South Africa to disregard our Constitution and disregard the rule of law. It’s very unfortunate.
ALEC HOGG: We’re losing a little bit here. You’ve taken it to court. The next step is that one of the trade unions who will be affected by that – SACTWU – is unhappy about it, and they are now writing to…
HERMAN MASHABA:  They are writing to the business community in their sector, saying that they must dissociate from the Free Market Foundation. They must sign, as part of their Conditions of Employment for 2014 – 2016, that they’re not going to allow the Free Market Foundation to take this matter to court.  They want the business community to sign this as part of the Conditions of Employment for the next few years.
ALEC HOGG: So when the trade union is now going into the negotiation with the business community in this sector of the economy, they’re saying that apart from the wages…
HERMAN MASHABA:  Wages and other Conditions of Employment: they have to sign and accept that they’re not going to allow the Free Market Foundation to take this matter to court.
ALEC HOGG:Â But how can they stop you from taking it to court?
HERMAN MASHABA:  I don’t know. It’s really one of those bizarre, quite frightening, and worrying situations.
ALEC HOGG: And if they are sponsors of the Free Market Foundation…?
HERMAN MASHABA:  In addition, if they are sponsors of the Free Market Foundation, they must immediately resign from the Free Market Foundation and openly disassociate themselves from the Free Market Foundation. What is actually quite scary about this, Alec is the fact that… Can you imagine if the business communities coerced into signing these agreements as they’ve been forced to do all these years…? Now, the Minister of Labour has to take these agreements and enforce them on other parties, non-parties, and all those ‘small guys in Venda or in KwaMashu who were never party to this agreement. Once the Minister has signed, this becomes law. This is what the Free Market Foundation is actually fighting about, and why South Africans are not really seeing what this whole case is about. Can you imagine the government giving the responsibility to private parties? One day, I might not really like you. I can get the government to say ‘look, you know what, I don’t like Alec. Please (whichever Minister) don’t allow Alec to be part of our country’. It’s really very scary. Why our government, parliament, and all of us as South Africans, are allowing living in a dispensation like this, is beyond imagination.
GUGULETHU MFUPHI:  How are you hoping to take this forward? Have you spoken to SACTWU?
HERMAN MASHABA:  How do you talk to them? They’re the ones… We’ve actually been waiting for their response ever since we made these announcements when we picked up this new document going around to the employers and the business community.
ALEC HOGG: Does it come from SACTWU’s chief?
HERMAN MASHABA: Â It comes from operations.
ALEC HOGG: Remember, SACTWU is also a big company that has a stake in eTV whose Marcel Golding and Johnny Copelyn are trade unionists who are billionaires, as well. Maybe that would be a way of approaching them
HERMAN MASHABA:  Sometimes I think you have some of the media in this country who don’t have an interest in this particular matter. Maybe that’s the reason why. Our country cannot really be run on the basis of personal interest in matters. Let us really look at the big picture. We’re sitting with just under eight million South Africans: destitute…really desperate South Africans. That’s why we see all these boycotts etcetera in our country. We look at the last 20 years and how we failed to produce small businesses in our country. How can we sit back and really say ‘look, we’re privileged South Africans. Therefore, I don’t really care about the rest of society’? I believe that for us as the Free Market Foundation, we’re taking this matter seriously and I think we’ll do whatever it takes to ensure that someone – one day – listens to us.
GUGULETHU MFUPHI: Â Are you concerned that maybe other trade unions might join SACTWU?
HERMAN MASHABA:  Well, I think if you really look at this approach, I’m totally convinced that the other trade union movements are really going to be coming out with this demand to the entire industry.
ALEC HOGG: But it’s a good thing in a way, because you’ve hit a nerve. You’ve hit a very sore nerve. For someone to react in this way and to say ‘if you continue to support the Free Market Foundation, you are challenging us in the Constitutional Court – the highest court in the land – then we will do XYZ to you’, then it’s a good thing. Surely, you’re making progress.
HERMAN MASHABA:  Yes, but Alec you yourself know how long I’ve personally been against what I call draconian labour legislation for the last ten years – almost singlehandedly – and I really find it quite bizarre and strange that the business community… They’re aware of the devastating effect of this draconian labour legislation. For them to be quiet, I think, is also very unfortunate.
ALEC HOGG:Â But are they supporting you or have you had resignations?
HERMAN MASHABA:  No, fortunately enough, we’ve not had any resignations. The thing is that for us as a Free Market Foundation, the support we receive from the business community is really so small that I think it’s neither here nor there. I think that the labour legislation, in terms of the court case itself…I’m finding it myself, as a South African who is really concerned – privileged – and I feel it’s a contribution I can make in ensuring that our poor people are given opportunities to work.
ALEC HOGG:Â If anybody resigns, let us know.
HERMAN MASHABA: Â Well, I think it will really be interesting to see if the business community will really accept being party to this illegal action.
