Outsourcing has fallen at UCT: why is this an important win for all of us?
At common law a contract does not have to be fair to be lawful. For a contract to be lawful there must be consensus (agreement), the parties must have capacity to act, the terms must be legally and physically possible to perform and any formalities imposed by law or by the parties themselves must be adhered to.
But fairness is not a requirement. The employment relationship at common law must meet the above requirements to be lawful. At common law, there is, similarly no requirement of fairness. But the employment relationship, has, by its nature, a strong element of control and has its origins in the master/servant relationship of our common law. This means that the relationship is vulnerable to imbalanced power relations. Our legislators have thus attempted to impose the requirement of fairness onto the relationship statutorily via various measures in the LRA including collective bargaining, Basic Conditions of employment and various Employment Equity Mechanisms.
The culture of outsourcing and labour broking is a way in which some of the mechanisms which were intended to impose fairness onto the employment relationship can be circumvented. So at a very basic level a buffer is created between what would otherwise be employers and employees. This distance allows for what would have been the employer to distance himself/herself/itself from who would have otherwise been the employee and be far less accountable. There are many complexities and implications that are experienced by a worker where this “middle man” or agency relationship exists. Some are:
1. The worker is enduringly a contract worker without proper expectation of permanent employ
2. Because of the buffer/ “middle man” or agency cost, the worker tends to end up with less pay than would be the case if there were no such buffer
3. Relationally the worker doesn’t have the same connection that is meant to be born in good faith, trust and loyalty that is meant to be nurtured within the employment relationship
4. It is much easier for what would have been the employers to harden their hearts and shut down contract workers than would be the case in a proper employment relationship
Does this mean that there are no upsides to outsourcing and labour broking? No. But in a deeply divided society such as ours and one that is so profoundly unequal, outsourcing and labourbroking serves to deepen the disparity that is hurting us all. A close examination of the Marikana massacre shows that labour broking or outsourcing played a significant compounding role in the unfolding events that lead to the tragedy.
The youth in our land are leading the charge in dismantling some of the aspects intrinsic to a system that can sustainably advantage the few at the expense of the many, if it remains largely unchallenged.
We need to understand that in the broader scheme of things, in the interests of a more just, and therefore potentially safer world for the next generation (that’s our kids), the current movements lead by our students are actually in the interests of us all.
Sheena St Clair Jonker
Per ADR Network SA and the Access to Justice Association of SA
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I returned from Cape Town last night and this morning as I opened 3 brand new files for evictions of communities, I wept.
Look. The weather in Cape Town was enough to make any grown Durbanite cry, but right now, I write of not natural phenomena, but imposed human tragedy and suffering.
I was in Cape Town, primarily to advocate for members of the Taxi Industry who are patently being sidelined and subject to arbitrary non-renewal and non-granting of permits which is accompanied by, expensive, and sometimes violent, law enforcement.
While I was there, I was consulted by yet another community facing eviction. Correction, this is the first one facing eviction. The other two were evicted in some kind of act first and explain later massacre of the law and complete derogation of the essential standard of what is humane.
This community faces eviction. And they were referred to me by Ses’khona on the day before the action for eviction was to be heard in court.
I met with the community leaders who handed me a heart breaking statement they had written on the mandate of the community. I publish it here, with their consent.
“New Castle residents we came from inside Monwabisi Park that know as Ndlovini, we were living as back yarders and house keepers. Living like that was never been pleasant, the land lords do whatever they like because they know that we were depending on them. It hurt deep inside when somebody is telling you that should’ve been living on the streets if he/she didn’t accepted you in his/her space.
Being a backyarder had never been easy. You must always keep in your mind that anytime you can be kicked out as that happened to us, because we were not in our own space or plot. What during the process of development we were given the notice by our land lords to move our shack out so they can put their relatives and children on the spaces so they can get development. It is hard to refuse when someone is telling you that, while you know that you living in his/her space. Rent and electricity are so expensive, some of us are not working, and some of us does not get enough salary/wages to go rent some else when we got kicked out. When got kicked out we didn’t know where to go, we then decided to use piece of land to build us some houses.
As there is a speech or saying here in South Africa, South Africa belong to all who live in it, our feeling on that speech is like we are foreigners in our country. We then decided to come to this space at back of Ndlovini which we called it New Castle and use it as our home. A home is where it is safe, we took that as our responsibility to keep New Castle safe and secured.
In New Castle we did not mean to interrupt the metro of City of Cape Town on the progress of working. As the slogan of our metro says, this City works for you, we sincerely want it to work for us on this really hard situation. We have families and children to take care, we don’t afford to be on the streets.
As New Castle residents we are sincerely needed a place to live and that’s why we ended up here.”
So yesterday what I did was attempt to call the City’s attorneys to let them know we had been instructed and needed time to consult with the community and instruct a legal team to represent them. I found that even with a case number and file reference number, the firm dealing with the matter could not direct me to the attorney handling the matter. I have over 10 years experience formerly practising as an attorney and conveyancer, over 18 years experience in teaching law and ADR and in the practice of alternative dispute resolution and restorative justice. And I could not secure these details. What chance does a Xhosa speaking community of urban shack-dwellers facing eviction by the City have?
As I was heading down to court the community leader called me
“Mamma, the community is waiting at court for you
I’m on my way
Mamma can the community sing?
Yes, you can sing. But remain peaceful. We must be safe.
As I arrived at the court, I heard a group approaching, singing.
They gathered in from of the court and I thought it was the New Castle Community. But I stood on the court steps waiting for the community leaders. The group were singing and dancing, but they were peaceful.
At some point I was called by our clients. They had gone to the wrong court and I directed them to the High Court. I realised the community before me were not our clients. I learned this was a community who had been evicted and their matter was also in court.
At some point a police officer approached me:
“This group must stop singing
Why? They are peaceful, I said
Do they have permits to gather?
They have been evicted and summoned to court. They have every right to be here, I said
The police officer turned menacing and took out his phone threatening that if they do not stop singing he would “call who I have to call”
He a wrapped up his threats with “They will disturb the office workers and we can’t allow that”
Seeing this engagement the group started to Toyi Toyi. So just to help diffuse the situation I approached one of the members upfront to chat to them. The community became suspicious and started to chant “shoot, shoot, shoot.” In Xhosa. I with the assistance of someone with me was able to convey that we were allies of their plight and not against them and all remained calm.
Time was getting short so I headed up to court to see if I could find the City’s lawyers. The registrar was helpful and said as soon as they arrived, he would introduce them to me. Looking around the court and seeing it filling up with Advocates rapidly, I said to the registrar, the community is gathering outside and there is another community. I think things may be tense with police and I may like to invite the community in just to help mitigate against any injury or harm.
“We don’t care what happens out there, they can kill each other for all I care. We don’t have space in here”
So I said, Sir, I think we have a responsibility to guard against injury and loss of life.
The Registrar softened and said “Madam, you are right, and they have every right to be here. Inside. Please invite them in”
When the City Legal Team got there, they were immediately directed to me. They were gracious and approachable and agreed on a two week postponement for Access to Justice to understand the case against the community and instruct an appropriate legal team.
Outside, in the rain, I addressed the community, with the help of one of our Taxi Operator clients who helped me interpret and who helped me get to Court and Assisted me in navigating all the territory, literally and figuratively. I explained to the community the purpose of the adjournment and how we would gather information and advocate for engagement with the City in terms of Section 26 of the Constitution and the Grootboom case which makes it unlawful for Administration to evict without proper consultation on alternative living arrangments. I also gave them comfort, confirmed by the City’s legal team, that no action to evict would be undertaken immediately.
As we were wrapping up, a woman approached me and asked to meet with me. She happens to be the acting head of the SA Human Rights Commission of the Province. We met later and discussed the disturbing trend of local government and the state literally negating the needs of the poor and actually creating further homelessness. We spoke of the plight of the poor as the sleeping giant about to surge up and agreed that we would do all we could to work in solidarity with each other and others who recognize this as untenable for every citizen of the country. And we agreed that we would respond to the plight of the poor in this with whatever measures we can to protect them against further injury, further homelessness and further, extra-aneously imposed poverty. We agreed that it is in the interests of every single citizen of this land that we protect the poor.
We will not accept a status quo where office workers are protected from hearing singing in the streets, but the poor are not safe in their own homes. And the enemy of the poor, happens to be the very ones with a responsibility to protect them
Sheena St. Clair Jonker
ADR Network SA and Access to Justice
I blog in peace.
Here is an update on some of the latest developments in the world of ADR and Access to Justice:
1. COURT ANNEXED MEDIATION
Please note that the date for sending back commentary on published accreditation standards and Standards and norms is 28 August 2014. If you have not seen the gazetted notice and would like it sent to you, please email firstname.lastname@example.org with “Copy of Gazette Notice” in the headerPlease note our Cape Town Five Day Program proceeds next week and on the Thursday we will cover court annexed mediation and developments to date. All panellists are welcome.Past trainees, as you know may attend all further workshops at cost of catering
2. DISTANCE LEARNING PROGRAMFor more information please email email@example.com with “distance learning subsidy” in the header
We have a limited amount of places on our distance learning program still available at a subsidized rate of R 3000. This is suitable for those who cannot take off 5 consecutive days. Contact time will be made up via webinars and attendance at half day seminars
3. ACCESS TO JUSTICE PROVINCIAL SUBSTRUCTURESThe Cape Town Provincial Substructure meeting will happen directly after next Thursday’s workshop
For an invite please send a mail to firstname.lastname@example.org with “ATJ Cape Town Provincial Substructure” in the header
4. ACCESS TO JUSTICE GOLF DAY
Also if you are keen to help us host a golf day in any other centre, please get in touch similarly
Please diarise 18 November in Durban for the first annual Access to Justice Golf Day. If you are interested in entering, sponsoring a fourball, prizes or a green or tee, it will be great exposure for legal services or ADR and ancillary services. Please send an email to email@example.com with “Golf Day” in the header
5. FIVE DAY PROGRAMS
Please NOTE: The Cape Town program runs next week. If you still wish to attend contact us urgently on firstname.lastname@example.org
Remember that past trainees just pay cost of catering (normally R 220 per day) and panellists attend Thursday (ie Court Annexed Mediation) at no charge
For Upcoming dates or a proposal on in-house training, please send an email to email@example.com with “Five Day Training” in the header
6. JUSTICE NEWS
Our Online News Postal, Justice News is live! This is an aggregator bringing together the work of dynamic bloggers and writers that write around legal, social, political and economic justice and creation care. In time you will be able to buy advertising space. To link your blog, or website, please send an email to firstname.lastname@example.org with “Justice News” in the header. Also please send an email to email@example.com to query advertising opportunities. Use the header “Advertising”
If you wish to join the panel of ADR Network SA or as a service provider to Access to Justice, please email firstname.lastname@example.org and email@example.com with “panel” and “service provider” in the respective headersPanellists enjoy ongoing attendance at training times and newtworking functions either at no charge or preferential rates
8. S v Sangweni ADR Dialogue
The ADR Diversion Dialogue in the matter of S V Sangweni proceeded this week. The mediation panel consisted of myself, Sheena Jonker, Brandon Abdinor, Hilton Green, Sipho Mdlala and for part of the time, Jay Gangat. The dialogue adjourned yesterday to enable us to complete an interim Mediation Summary for purposes of report back to court next week. Legal Counsel will ask for charges to be withdrawn and whether they are or not, the ADR Dialogue will continue as some significant issues have emerged during the storytelling process and as the week progressed individuals and those representing organizations such as the Department of Labour and Local ABM Warrooms became increasingly aware of the power of the process.
It was also amazing to see the value of the public narrative and how healing and powerful the story telling process is. This in itself mobilizes hope
9. Lwandle Ministerial Inquiry
We will be making further submissions on diversion to ADR Restorative Justice Process and will keep you updated
10. More Evictions
This week alone I was consulted on the threatened eviction of hundreds of families in KZN and this morning I have already been consulted on the demolution of 600 shacks as of an hour ago in Cape Town. I am waiting on further information and will be dealing with this further in Cape Town next week.
Thanks for your attention, support and continued interest in our work.
Please send your thoughts.
Over the past two days the presence of Cyril Ramaphosa at the Marikana Inquiry has held a significant presence in the news.
Advocate Dali Mpofu’s cross examination of him was frought with some tough themes, propositions, emotive adjective and idiom which Judge Farlam often called Mpofu on. I have watched, with interest varying views with many calling Mpofu to keep his anger in check and insinuating that there is some kind of personal-politico stand-off going on between opposing political agenda. Following are my views.
Mpofu at the outset told Ramaphosa his cross-questiong would comprise four broad themes:
- Action, or alternatively inaction where there was a duty to act
- State of mind or intention, etc
- Causality. He would explore the causal nexus between Ramaphosa’s action, or alternatively inaction and the consequences ie deaths and injury
- Outcomes, or consequences
Mpofu referred to a publication penned by Ramphosa in the wake of the Marikana tragedy and spent much time unpacking Ramaphosa’s sense of responsibility. There were concessions. However the concessions fell short of the strong personal responsibility that Mpofu was building a case for with Ramaphosa conceding “Collective Responsibility”
On state of mind and intention Mpofu explored Ramaphosa’s business interests, financial interest in the situation and what he referred to as a “web of relationships” which Rampahosa was caught up in that seem to be “incestuous”. He spent much time exploring conflict of interests. On this theme Ramaphosa attempted to raise an extra-aneous discussion around Mpofu’s impending status as silk. His raising of this in my view was a clear attempt at mischief making and it was conceded by himself that the discussions were initiated by him. With Judge Farlam’s own son on the list awaiting the president’s signauture, Judge Farlam ultimately diffused the situation well by affirming that everyone would be grateful if the Deputy President did what he could to promote the President’s action and due consideration of all on the list. This was done elegantly, graciously and light-heartedly. My view is that Ramaphosa’s attempts to humiliate Mpofu here achieved nothing except for possible reflection on capacity for dirty play.
But I wish to give a more personal account. I met Dali Mpofu on the Saturday before the start of the Marikana Inquiry. I was introduced to him by a mutual colleague on the issue of Alternative Dispute Resolution, something we have a mutual belief in. I didn’t know him, who he was, or any of his history at all. During the time I spent with him, I was struck by a brilliant legal mind and a deeply compassionate heart. We chatted about Marikana and I will never forget his words “Sheena, the public thinks this was a wage dispute. It’s so much more. It is a 300 year old story of systematic economic exploitation and exclusion. And we have a responsibility to ensure the story is told”
Later I met with Senior Counsel Dumisa Ntsebeza also on Alternative Dispute Resolution. We spoke about Access to Justice in the Marikana Matter and the danger that the powerful narrative of the miners would be muted or shut down.
Seeing Mpofu angry yesterday did nothing to compromize my respect for him. Sometimes anger is the right response. And for all his political alignment which may be at odds with the Deputy President, I can’t but see beyond the political stuff that may be at play and know that Mpofu is a deeply compassionate courageous lawyer and I honour his proceeding through this under very tough circumstances. Mpofu and Ntsebeza both relayed to me accounts of individual miners and families with an authenticity that I was unable to interpret as anything other than compassion.
Mpofu accused Ramphosa of selling out for 30 pieces of silver. Tragically, I don’t think the Idiom is misplaced. I work in alternative dispute resolution and access to justice. In exploring causality with Ramaphosa, Mpofu unpacked a chain of events and communique linking his action and sometimes inaction to the tragedy. Action in the form of exerting political pressure and the like and inaction in the form of his failure to assess, understand or promote negotiation. One of the most significant aspects of his action was his campaigning for the situation to cease being regarded as a labour dispute, and for it to be declared as criminal activity
In my work we deal with public violence and illegal gathering matters. Mpofu spelt out a very alarming tendency for the source of gathering and marching to be displaced and for gatherers and marchers to be viewed as criminals. The focus is completely taken off the originating cause which is often human rights violations or unfair labour practice, but in general, inhumanity. And if the powers that be can convince us that it is not what it is, but is actually criminal activity, then we will go on accepting police heavy- handedness which is accompanied by killing, injury and detention. The sum total is that the authentic voice of the people is brutalized, suppressed, maybe completely shut down.
I run two organizations. One in alternative dispute resolution (ADR and Mediation) and one in Access to Justice) Both remain apolitical. I remain apolitical. That’s important in what I do. I do what I can to bring light to dark places and to interrupt ensuing injustice. But it’s not enough. I do know though that the voice of the people will take on a life of its own. There is a growing collective no to this stuff and it’s in all of our interests, as a nation to get in the corner of those saying no to injustice.