A Sad Day

A Sad Day

The democratic Constitution of South African is flaunted as the primo constitution globally. It enshrines the  most important rules of the county's political system in order to protect the rights of its peoples. In a nutshell it highlights the values that must guide South Africa and its people as a whole. 

The constitution also defines what their powers are, and how it may be use by them. It gives insight to how Parliament and the other legislatures work. It explains how the national and provincial executives are chosen and how the South African courts function. As the supreme law of the country, the Constitution established 6 institutions to support South African democracy, further flanked by 14 chapters, viz  Parliament, the Bill of rights, the Founding Provisions, the Courts and the administration of justice, etc.

The South African courts function independently, yet and only subject to the Constitution and the law, which they are compelled to apply without bias - impartially. Its Conciliation Boards and Industrial Court of old, lacked credibility among organised business and organised labour, because under their ineffective adversarial model of operation, a mere or a rather measly 20% of all disputes were settled. 

As such, the Industrial Court was subsequently replaced by the CCMA. Armed with the amended LRA of 1995 and its somewhat informal relations model, one that  promotes greater co-operation and social justice, the CCMA now boasts a dispute resolution figure of over 70%. The question that begs to be answered is, "Is that really good enough for a country the boasts the best constitution in the world"? Having said that, take cognisance that a good 30% is falling through the cracks. Or a good 30% of is people is being fed a plate of injustice. Or a good 30% of perpetrators of injustice are getting away scot free, totally unchecked.

When an employee feels that he or she is unfairly dismissed from work without any procedural conformity, or without severance pay or is sexually harassed or plagued by any other work related gripe, he or she then has the right to refer it to the CCMA. As such the CCMA provides recourse against exploitation, harassment, discrimination, unfair labour practice, disciplinary hearings  and so many other off beat practices. Employers on the other hand, also  have recourse against employees who make fraudulent declarations on CV's, sleep on the job, steal company property, have incapacity,  display misconduct and operational requirements, but the list goes on. Essentially a mechanism of the state to assisted both employees and employers against the wrath of one another.

CCMA stands for Commission for Conciliation, Mediation and Arbitration (CCMA); a body established in terms of the Labour Relations Act, 66 of 1995 (LRA), focused on dispute resolution. The objective of its formation was the need to bring SA labour law into conformity with the SA Constitution as well as with International Law and its guidelines are enshrined in a 333 page document, downloadable here!

So, before you refer a dispute to the CCMA, be sure that it has merit. Never refer a dispute that doesn't have any, because it would just be a waste of your and your employers time, a waste of tax payers money and serve as an injustice to fellow employees whose referrals could have been expedited. It could be worth your while to consult said document and see how it relates to your dispute and what your chances of success are.  

But and a very big but at that, dispute referrals have a time constraint, a "sell by date" if you like. To elaborate,  "dismissal disputes", fair or not, expires in 30 days whereas "unfair labour practice" expires in 90 days. In fact the entire LRA of 1995 is time sensitive to the point that whole document borders on being annul about "within 14 days", "within 21 days", "within 30 days", "within 60 days" and "within 90 days".

If for example you have a watertight case of dismissal against your employer but fail to submit within the 30 day prescribed period, you're standing on the edge of a really deep precipice. The CCMA may condone a submission if it shows "good cause", implying that you need to complete a condonation form which covers "the degree of lateness of your the referral; the reason for the lateness; the prospects of success based on its merits; and the prejudice you stand to suffer if condonation is not granted". A really slippery slope.

The outcome of condonation "showing good cause" is subject to the commissioner's leniency and it's gona be "A Sad Day" when he or she figuratively flushes your watertight case down the drain without even looking at it.  Talk about rock bottom - slippery slope - deep precipice.

But allow me to divert from the topic ever so slightly. The statute of limitations is best described as a statute that prescribes a "period of limitation" in which to bring about actions of a certain kinds. For example, murder, treason and sexual abuse of a minor child is deemed far too heinous to warrant any limitation.  Whereas, the statute of limitations for rape varies based on the severity of the assault but can be anything from  3 to 30 years after the criminal act, depending on the state and country. 

South Africa has numerous and varying laws which specify prescription periods as a "rule of law", specifically designed to bring finality to an issue. However "Prescription" is inappropriate for sexual offenses, because instead  of fulfilling its intended purpose of penalizing victims for not reporting a crime, in effect it penalized them for being unable to report the crime due to the trauma it caused, not to mention the fear of reprisal. Very peculiarly, most rape victims aren't even aware of prescription as a law, even though the law pundits tout that "ignorance of the law is no excuse", expecting all citizens to know what they know.

I can hypothetically equate this "within 30 or 90 day prescription"  to a rape case, where the raped doesn't lay a charge timeously and the perpetrator /offender goes scot free or is rather given the licence by the legal system to continue raping unencumbered. Restated, if an employer is guilty of firing employees left, right and centre and if none of them ever had any previous dealings with the CCMA they would all, more likely than not, be totally oblivious of its time frames, thus all guilty of referring their disputes late. 

If  their condonation   doesn't "show good cause", all these employees would feel violated (raped) by there employer yet unable to do anything about it, because the system is flawed. The CCMA or rather the "rule of law" hereby emphatically dismisses the employees legitimate gripe, thus further punishing him/her fairly heavily and to add insult to injury, awards criminal employers a licence to continue to dish out further injustices on as many other employees as they likes, totally unencumbered.  Where's the human dignity, the equality, the human rights and the freedoms enshrined in this all encompassing constitution? It's high time that "Prescription on dismissal must fall".

I'm certain if a survey is done on how many employees missed the deadline for referring disputes to the CCMA, because of their unfamiliarity with the law, it would be devastatingly high.  Probably much higher than their conflict resolution dispute success rate of 70% because their workload would then only constitute 30% of all cases anyway. Is this democratic progress? Or is our legal system regressing all its people to rape victims, violated by their employers, while the "rule of law" looks upon the act with a smile on its face.