COSATU

URGENT

04 February 2004

Select Committee on Security and Constitutional Affairs

National Council of Provinces

Parliament

Dear Mr Moekoena

COSATU made detailed written comments to the Portfolio Committee on Safety and Security on the Anti-terrorism Bill(ATB) in June 2003. Arising out of public hearings the ATB was substantially revised and introduced some welcome amendments, with the Bill being called "The Protection Of Constitutional Democracy Against Terrorist And Related Activities Bill".

We note with extreme concern that new amendments to the definition of "terrorist activity" would have the unintentional effect of undermining the right to strike and other forms of legitimate industrial activity. This is explained in more detail below.

1. The Definition includes unlawful acts by individuals or groups within the context of a lawful strike/industrial action.

(See for eg. clauses 1(1)(xxiv)(a)(vii); 1(1)(xxiv)(b)(iii); 1(1)(xxiv)(c) read with clause 1(3).)

While COSATU does not blanketly endorse such acts, the facts of each incident should be examined on a case-by-case basis. For example, workers who may be unduly provoked/intimidated (eg by employers/ police officials) into causing damage to property. This would also constitute an act of violence referred to under clause 1(1)(xxiv)(a).

This raises the question regarding whether the act, if unlawful, should be considered a terrorist activity or more appropriately some other criminal offence. It should be noted that existing criminal law already covers such offences.

 

2. The Definition includes unlawful strike action.

(See clause 1(1)(xxiv)(a)(vi).)

Again it should be clear that COSATU is not proposing the blanket endorsement of the above. However, allowance should be made for an examination of the facts on a case-by-case basis. Instances may arise where in the interests of our membership we find it necessary to support workers who are participants in an unlawful strike. (For example, in the recent ZZ2 case, farm workers participated in unlawful strike action against their employer for its refusal to implement the legally stipulated minimum wage conditions for farm workers.)

Further, an unlawful strike must be more accurately understood to be a reference to labour law and not criminal law. It is therefore NOT a criminal offence. In essence we are talking about an unprotected or unprocedural strike. This means that workers may be subject to possible dismissal or other civil action but not necessarily criminal prosecution.

The definition of "terrorist activity" will in future render unprotected (although currently lawful within the context of criminal law) strikes as criminal activity. This would include workers who participate in a stayaway or refuse to work as part of an unlawful/unprotected strike action. This would constitute a reversal of the current legal position, which does not criminalise this situation. More importantly it constitutes a reversal of hard fought gains that workers were denied under apartheid. It is also very possibly unconstitutional.

 

3. Implications for Essential Services

Terrorist activity would include industrial action that seriously interferes with essential services, regardless of whether such action is lawful or not.

There are existing problems regarding the excessive limitation of rights with regard to essential services. The existing definition of "essential services" is so broad that it includes workers in Parliament and even a gardener working for a hospital would be covered. In the public sector government has thus far resisted entering into minimum service agreements, which would address this. In view of the existing excessive restrictions on the right to strike in the context of essential services, further limitations should not be implemented at this stage.

 

4. Limitations on Constitutional Rights Must be Reasonable

Including strike action within the definition of terrorist activity constitutes a limitation of the right to strike. Admittedly all rights are capable of being limited. However, such limitation must be reasonable and there should be an absence of a less restrictive means. Failing this the limitation may be found to be unconstitutional. It should be noted that there are already existing limitations on the right to strike.

The risk of merely being accused (ie does not have to go even as far as actual prosecution/conviction] of terrorist activity may have the effect of discouraging the use of the right to strike. This raises the possibility of it being used by employers as a "strike breaker".

5. Conclusion

COSATU acknowledges the responsibility of the government to protect the rights of citizens against acts of terror. However, we strongly believe that this should be realised through appropriate mechanisms that do not have the effect of violating hard won gains, particularly those relevant to the right to strike. Accordingly we are calling on the Committee not to pass the Bill until our concerns are addressed. If the principle of what we are proposing is accepted we are willing to assist in reformulating the definitions.

Thank you.

Yours sincerely

Prakashnee Govender