Workers’ Day always feels me with nostalgia! It brings beautiful memories of the decade and a half that I spent on the cutting edge of public union and Government relations. With my learned colleague Tshiamo Rantao, from 2008-2020, we litigated just about every conceivable issue that could be raised as between union and employer in the workplace, on behalf of the public sector unions. On this particular day thought I should share a short note about the birth of BOFEPUSU that was almost stillborn.
The evolution of the legal framework for public sector unionisation seemed to coincide with my entry into practice. Relations between the public sector unions (all of which, apart from Manual Workers’ Union, had just recently been established) and the Government very quickly became a melting pot. As a young leftist with testosterone overflowing and anarchist tendencies, working with the public sector unions was a dream come true. For more than decade I felt like I had the best job in the world!
The first brief I got from the public sector unions was in 2007. It was to assist with the drafting of the BOFEPUSU constitution, for the constituent members BOPEU and Manual Workers. It would later become contentious as it was said that BOFEPUSU was not formed in accordance with the Trade Union and Employers’ Organisation Act. The law required that in order for the unions to resolve to federate they first organise a ballot of the general membership of both unions (which at the time exceeded more than 45 000), and no ballot had been conducted. The failure to conduct such ballot would later be used in 2008 by the Government to deregister BOFEPUSU on the basis that it was registered by mistake. An appeal to the High Court against de-registration was thrown out by Judge Walia (then a High Court judge). A further appeal was made to the Court of Appeal against the de-registration. Prior to the appeal, Advocate de Bourbon, the greatest legal practitioner in Zimbabwe of his generation, was briefed to advise on prospects of success on appeal, and he told us that our case had no prospects of success, as the Trade Union and Employer’s Organisation Act provided that the High Court’s decision on the de-registeration was final. Advocate Tim Brundiers was eventually briefed by Tshiamo to come argue the case. He was a coloured man, the first foreign non-white advocate that I met or worked with. As counsel introduced themselves to the appeal panel, the late Tim McNally (then Acting Judge President) started pacing around his chambers and then raised the issue of whether the Court of Appeal had power to listen to the appeal. It became as clear as daylight, as had been advised by Advocate de Bourbon that Walia’s judgment spelt a death knell for BOFEPUSU. The appeal was therefore withdrawn as the Court of Appeal lacked the power to consider it.
Following the withdrawal of the appeal we were resigned to the fact that BOFEPUSU was dead, as the High Court had confirmed that it had never been properly registered. We discussed, with Tim, challenging the constitutionality of the provisions requiring balloting of the general membership of unions seeking to federate. I was sceptical of the approach as it was not clear as to how it would breathe life back into something that was already dead.
Tim had introduced us to a young black advocate called Tembeka Ngcukaitobi to work with as he was a bit busy. At this point I thought maybe Tshiamo was not taking the matter seriously as he was briefing black and coloured advocates, when there were experienced white advocates at the Johannesburg Bar! Tembeka’s counsel was that we urgently approach the High Court, to suspend the Registrar’s decision to deregister BOFEPUSU, pending a constitutional challenge of the provisions requiring balloting. We thought our chances were slim given that Walia had already confirmed the de-registration.
As fortune would have it, the computer system used to allocate cases on registration allotted the matter to Justice Moroka, the only judge at the time, apart from Dingake and Motswagole, who would not have quickly thrown out on the basis that Walia had already confirmed the de-registration. Justice Moroka gave BOFEPUSU the orders they sought, thereby preserving its status, pending the challenge to the provisions requiring balloting of the general membership.
The constitutional challenge to the statutory provisions requiring balloting of general membership was a couple of years later upheld by Judge Leburu. The end result was that BOFEPUSU continued to exist and unions are not required to ballot their general membership in order to federate. BOFEPUSU would thereafter prove to be a thorn to Government. It all may have been different but for Moroka’s fortuitous intervention.
Following the recent election of a government that seeks to put human rights at the centre of everything, it was most fitting that Justices Moroka, Leburu and Motswagole were elevated to the Court of Appeal.
Happy Workers’ Day!
