A Legal Duck Soup 

O nomen dulce libertatis.

O ius eximium nostrae civitatis.

Cicero, In Verrem II,5,63,163

What is better on a public holiday than being amused by a politically-correct gem written by the esteemed Professor Pierre de Vos, the great High Dalai Lama of constitutional analysis? Babes and champagne would be better, but you cannot always get the best. That is free economy.

Let us turn to the ugly, reactionary and despicable facts. Facts have these properties as they are always blocking leftist pipe dreams. (Thank you, dear Martin van Staden, for sharing De Vos’ article.)

1. The Free Market Foundation (FMF) challenged the constitutionality of section 32 of the Labour Relation Act (66 of 1995) as amended by the Labour Relation Amendment Bill of 2012 (‘the Act’).
2. The wording of this section can easily be ‘Googled’. Prima lex as one of my civil law professors at university said.
3. De Vos did not quote the Act properly.
4. De Vos admitted that he did not study the court papers of FMF.
5. Nevertheless De Vos knows nearly everything in a quite speculative way.

Until now, I assumed that an article written by a professor of law contains mostly legal arguments. I was wrong. With De Vos, such an article contains mostly inept speculations like “the organisation has a lot of money to waste.” Look, it is not your business, Professor, to decide how one organisation spends its monies.

“In a constitutional democracy, the temptation to rush to the courts…” – as opposed to the brilliant fields of socialism where such ‘temptations’ are answered with ‘gulag!’ or a shot in the neck.

“Personally, I am a little bit sceptical of the ideologically driven claims by people whose business is to exploit others and make as large a profit as possible…”

Alright, all entrepreneurs and business owners are blood-sucking exploiters. Isn’t that ‘hate speech’?

Harald, do not be naïve! Hate speech is everything right-wingers say, even if being only a mild-mannered moderate critic of left-wing positions. What the left says is always pure reason.

Let me inform you about reality, dear De Vos: business owners are in the business of producing goods or services for the benefit of the consumers. The producers of (let us say) a bicycle – in order to keep the carbon dioxide footprint low – aim to provide you with a bicycle as you would like to ride one, rather than paying the worker miserably. By the way, a free market economy only works if wealth is created – the opposite of socialism, which creates only wrong statistics and real misery. Also, workers are consumers and may like to ride bicycles, so fair payment is also in the interest of the entrepreneur. “Not because I am rich I pay fair wages, but because I pay fair I am rich,” as the great German entrepreneur and inventor, Werner von Siemens, said.

Now what is the real legal challenge here?

Section 32 of the Act empowers the minister to extend (or rather impose) the content of collective bargaining agreements to third parties which are not members of the negotiating parties. A student in his (or her or its) first year of sniffing into law will easily recognize the dogmatic problem: two parties conclude an agreement and then a state authority is empowered to impose its conditions and provisions on third parties who have nothing to do with the negotiating parties.

So, for example, Martin van Staden and I agree on the salary that De Vos may receive from the University of Cape Town, and then a minister declares that binding on both De Vos and UCT. Professor De Vos might not be amused that our idea of what he is worth differs from that in his own imagination.

Being trained in Austrian labour relations, I can report how this dogmatic problem is solved.

You may argue with the rules of the collective labour law that the negotiating partners (mostly Kammern/chambers of commerce) represent all members of the trade as membership to them is a legal duty. That still leaves the trade union federation, where membership is voluntarily. But, as “worker chambers” with imposed membership duty also exist, which would be entitled to collective bargaining but ceded that to the trade union federation – you could argue that this federation is negotiating as an agent for the “worker chambers” so that finally on both sides the negotiating partners in fact represent all workers on the one side and business owners on the other side. An imposed membership duty surely does not sound dear to libertarians, but it is as it is and the constitutionality of this membership duty is not in question.

You could also argue with the rules of individual labour law. A collective bargain could be constructed as an agreement also in favour of third parties. Such kinds of agreements are admissible; as to the contrary agreements to the detriment of third parties are null and void as contra mores bonum. The third parties may then explicitly or silently agree to the favourable agreement. So it works in Austria and since decades it works well for both sides within the framework of ‘social partnership.’

How to argue and construct this problem in a dogmatically correctly fashion in the South African legal context should have been a call and challenge for Professor De Vos. But his article does not even give a hint that he grasped the fundamental dogmatic problem. The call was overheard…

“I have been unable to get access to their court paper”. Professor, you could have phoned the FMF and asked. Obviously, he did not and must therefore speculate. He seems to believe that section 23 of the Constitution covers the provision of section 32 of the Act. It does not.

Imposing the conditions of collective agreements on parties who had not been represented by the negotiating parties is not a ‘fair labour practice’, as only a person which by common law is legally capable to fully conclude its own business can decide what is fair to him or not. It is about consenting adults, dear Professor.

In my humble opinion (and if I may), ‘constitutionally speaking’ – to borrow a phrase from De Vos – my reservations against the imposing power of the minister are based on section 13, as this imposition could be seen as enforced labour conditions; section 22 as such imposition may be an undue regulation of free trade, occupation or profession; section 23(1) as an imposition is per se not fair; section 25(1) as no one may be deprived of property and the right to independently conclude agreements and contracts according to your own concepts is part of one’s property; and section 33 as such an imposition may not be judged to be a just administrative action.

To impose conditions of one agreement to third parties can in itself not be lawful, reasonable and procedurally fair, as it violates a fundamental principle of civil law, the autonomy of the parties and the freedom to conclude any type of contract.

The lawmaker must have ‘felt’ uncomfortable with the imposition provision, as the imposition is bound to a lot of ‘ifs and whens’. That those ‘ifs and whens’ do not even slightly support the imposition from a dogmatic point of view is another canteen’s beer. Rule 1 makes the situation even worse from a dogmatic point of view. That the ‘extension’ (as the imposition is softly called) is only admissible if the majority of the members of the negotiating parties vote in favour of the extension is remarkable. So 51 percent of the members of one business chamber may with their vote impose the collective bargain on businesses not being members of that chamber? Interesting point. Not really dogmatically admissible. At least, not for the exactly thinking.

But thinking sloppily is also fine.

“As far as I know there is no right to make a profit enshrined in the constitution… neither a right to work or to be employed.”

This truism misses the point.

Of course the Constitution does not give a right to a profit. That is typical socialist thinking that a law can give effectively economic benefits to someone. It cannot. And if it does it, will always be to the detriment of others and finally to the detriment of the whole economy, as we can see with spying eyes for years in Venezuela.

But the Constitution gives the right to try to make a profit, to try to find a job or work within your natural freedom to choose a trade, occupation or profession. That over-regulating and undue state interferences denude, damage and destroy this natural right is evident, except to scientific socialists and all that ilk.

“Quixotic venture…”

Literature is not De Vos’ strong side. Don Quixote, el caballero de la Mancha is a sometimes tragic, sometimes funny day dreaming figure, complete beyond any economic or business and legal considerations.

The court action of the FMF may have had good reasons or the responding minister’s court paper even better reasons, and finally the ultimate legal wisdom rests with the supreme courts of the land, and we all know that on the high seas and in court you are in the hand of God. So be it. But having a legal opinion that differs from that of De Vos can never be ‘quixotic’ – to the contrary, it might be highly admissible.

De Vos attempts to mix one part righteous anger, one part cold legal reasoning and one part – hey, the cup is already full! – irreverence. But that cocktail does not taste well. It’s quack. Quack, quack, quack.