It’s simple (but expensive) - Politicsweb

Martin van Staden 
In 2024, with any luck, the Multi-Party Charter, or some other configuration of opposition parties, will take over the reins of central government, or at least one or two additional provincial governments. But just because the ANC is electorally deposed does not mean that it is out of government. There will need to be significant terminations of employment by any new government dedicated to reform. 

Chris Pappas, recently announced as the candidate for premier for the Democratic Alliance (DA) for KwaZulu-Natal in the 2024 provincial election, recently appeared on Newzroom Afrika to discuss his candidacy and vision for the province. The DA is one of the more prominent parties in the Multi-Party Charter (MPC). 
 
While answering a question about whether he encountered resistance from African National Congress (ANC) holdovers in the municipal government of uMngeni (of which he is now mayor), Pappas acknowledged that he did. He explained that there are individuals who ‘deliberately frustrate’ the aims of the new government. They would hinder the appointment of new, qualified civil servants, they would force the government to renew contracts that do not provide the best value for money, and they would engage in go-slows.  
 
Particularly annoying was Pappas admitting that today, 22 months after his administration began, some of these people are still in their positions, although he did emphasise that they are a minority and not a major obstacle to his work. 

Conservative, statist mentality 
 
The problem is not with uMngeni or Pappas in particular, but with the conservative mentality that he and virtually all of his colleagues exhibit. This mentality, I fear, might doom the MPC at the provincial and (with any luck) central spheres in and after 2024. 
 
An MPC government would be a complex beast, forced to accommodate – as a continuous matter – many differing parties. One can already see how the DA and ActionSA specifically would constantly be at each other’s throats despite being part of the same pact. The kiss of death, however, would be if an MPC government would also have to accommodate the demands (as the MPC government in Tshwane is today trying to weather) and tardiness of ANC-aligned comrades within its ranks. 
 
The unacceptable conservative mentality is one of slavishly obeying the letter of the law (in particular laws like the Labour Relations Act and the Basic Conditions of Employment Act) and following ‘the process’ to terminate the employment of obstructive (at best) and destructive (at worst) government officials from the previous administration.  
 
The reform imperative 
 
Stability and predictability are key ingredients to keeping a society prosperous. But there is no point in dishonestly assuming that society is, in fact, prosperous – when it is not – and then arguing that stability and predictability must at all costs be maintained. South Africa is not prosperous. 
 
And this means that some realpolitik and Machiavellian manoeuvring might be necessary for us to transcend the artificial barrier that has been constructed in the road to a flourishing future. 
 
The ANC’s policies have wreaked havoc on South Africa’s socio-economy, and the policy of their potential alliance partners, the Economic Freedom Fighters (EFF), would make even that destruction look like ‘the good old days’. While the ANC has offered some meagre concessions on various policy aspects like electricity generation, it shows no signs, whatsoever, of abandoning the core ideology that led us here. 
 
It is under such circumstances that reform goes from being a mere alternative policy dispensation in an open democracy, to a non-negotiable imperative that must be realised quickly, and perhaps more important, deeply. 
 
If you ask me, few truly ANC-aligned state officials working under a MPC government will want to allow this reform agenda to be brought through to fruition. 
 
Simple, but expensive 
 
My advice is this: fire the comrades (whose identities will quickly be apparent to the new government). 
 
Plan long and plan hard, but plan to do it in the first week, without hesitation and without equivocation. The hesitation must come during the planning phase, not during the MPC-in-government phase. 
 
Forget about verbal and written warnings and forget about the much-vaunted ‘process’. 
 
If someone gives the MPC government good reason to believe that they are manoeuvring politically to hinder or harm the reform agenda, they must be fired immediately, and any and all access they have to government property and resources must be revoked forthwith. 
 
It is simple. But it will be very expensive – to the point that it must in all likelihood be an item of the new National Treasury’s budgeting process.  
 
If my advice is taken, the ANC-aligned comrades will – except under the most egregious of cases – likely win all the cases in the CCMA. And they will win all the way to the Labour Court. This is fine and must be reconciled with during the long and hard planning phase. 
 
Rather than grasping at straws to win these cases – under brazenly inequitable governing legislation –the MPC should instead make it clear to the CCMA and the Labour Court that the relationship between the government and the employee has broken down irretrievably, and that under no circumstances will the employee be able to return to work.  
 
The courts must see no other option than requiring the payment of (up to 24 months) compensation for unfair dismissal.  
 
The price-tag associated with this will be huge. 
 
But it is ultimately a price that the MPC and – I regret to say – the taxpayer, must be eager to pay. Because the alternative will simply be even more expensive.  
 
What is that alternative? Allowing ANC-aligned comrades inside government to sabotage the reform agenda and all but guarantee that the MPC will last only a single term, before a more-radical-than-ever ANC-EFF coalition is brought back to power. This might devastate South Africa for a generation or more. 
 
The MPC needs to be willing to set aside however many billions of rands is necessary to pay out the compensation packages.  
 
This will itself be a wrench in the works of the reform agenda, but the reform agenda is too important to expose to the destructive malice of the ANC holdouts in government. The reform agenda must start being implemented immediately, not only in several years once the saboteurs have been terminated through ‘the process’. 
 
Reform is not merely to be preferred, it is imperative. 
 
‘But it’s the law!’ I hear you cry 
 
It is true that South Africa’s labour legislation pass for ‘law’ today, but only according to the ungrounded conceptualisation of law that predominates in our age. And it is precisely because we adhere to such a weak conception of law that we are being forced into a world of realpolitik.  
 
The law – that majestic institution that has been revered over millennia – as Frederic Bastiat put it in 1850, has been perverted and infected with partisan political interests. We cannot treat this so-called ‘law’ (more aptly described as the legislatively codified opinions of self-interested politicians) with the same esteem and awe that we afford to unperverted law, like the ever-applicable principles of natural law or the common law.  
 
For as long as legislation is perverted, we must treat it as such. 
 
The ANC and its deployees do not use the law as an impartial force that treats everyone fairly and ensures that justice is done. It uses the law unashamedly in its own interest. So, it makes no sense for a future reform-minded government to treat the ANC’s own legislation as if this is not what it is being used for. 
 
Now, one must not misunderstand me: I am not advocating that government must abandon the legal limitations on its own power.  
 
The Labour Relations Act and associated legislation is an unashamedly pro-unrestrained government code that bestows upon trade unions undue powers, among other perverse provisions. The Constitution limits the power of government and must be obeyed unflinchingly. The government’s own measures that create inequity and chaos must on the other hand be jettisoned without fanfare. 
 
The first prize, of course, would be for the MPC government to repeal or substantially revise the perverse legislation that distorts our labour environment, but this is not a quick process. 
 
The iron law of necessity 
 
But even I will not be so naïve as to expect a new government that has made (a faulty notion of) ‘the rule of law’ a key campaign promise to openly go against established legislative rules. Thankfully, the law itself comes to my assistance. 
 
There is a well-known saying that ‘necessity knows no law’, which means that whatever the positive law might be, if there is a pressing need, people will act out of necessity rather than blind obedience to the law. The law (properly understood), in touch as it is with reality, understands this and accommodates it within jurisprudence instead of leaving it out in the anarchic wild.  
 
There is thus a key principle of the (non-faulty) Rule of Law that says the law may not require the impossible. The Constitutional Court in Barkhuizen v Napier explained the principle as follows: 
 
‘[…] common law does not require people to do that which is impossible. This principle is expressed in the maxim lex non cogit ad impossibilia – no one should be compelled to perform or comply with that which is impossible. This maxim derives from the principles of justice and equity which underlie the common law.’ 
 
Lon L Fuller, in his widely accepted description of the principles of the Rule of Law, writes that legality can only be present when ‘no laws require[e] the impossible’. Where a legal system requires the impossible, it strays from legality itself. 
 
This argument against requiring the impossible must be considered alongside the defence of necessity that exists in criminal law and the law of delict:  
 
‘Necessity is a defence to both the criminal law and the civil law, that is, if an action was “necessary” to prevent a greater harm, that can be used to avoid both criminal and civil liabilities.’ 
 
For necessity to be invoked as a defence, the following must be shown: 

There must be an actual or imminent state of necessity, objectively determined; 

A legally recognised interest of the actor or someone else must be in danger; 

The act must be necessary to protect the threatened interest with no other reasonable alternatives; and 

The act must not be excessive but reasonable in the circumstances, with the sacrificed interest not outweighing the threatened interest. 

And so, things fall into place – legally. (I will leave aside the arbitrary ‘principle’ that legislation always overrules the common law for the self-serving and politically opportunistic ‘rule’ that it is.) 
 
The ANC government, with its legions of corrupt and incompetent civil servants, has brought South Africa to its knees, socially and economically. If any given piece of legislation stands in the way of rectifying this injustice, it would be impossible for any new government with a working moral compass to comply with it. 
 
Moreover, all the requirements for the defence of necessity are present: To terminate the employment of obstructive or destructive state employees in expedited fashion, despite what the legislation provides, the MPC government will be able to show that: 

There is a state of necessity in the form of the imperative for the socio-economic crises in South Africa to be brought to an end (the courts have recognised this ad nauseam); 

The government’s legally (moreover constitutionally) recognised interests and obligations are significantly hampered by ideologically obstructive staff; 

The alternative – to follow ‘the process’ – would unduly delay the reforms for which the MPC is elected, perhaps to the point of nullifying them entirely; and 

The harm done by the termination of the employment of some state officials does not outweigh the imperative of turning South Africa around quickly and sustainably.  

The courts, however, do not ultimately have to agree with this argument. They only need to agree that the fired employees cannot be reinstated due to an irretrievably broken down relationship, and must rather be compensated. 
 
A clean slate for a clean future 
 
A reform-minded government called upon to fix the mess the ANC has left us with would need a relatively clean slate to do so.  
 
The ANC manufactured for itself a relatively clean slate after 1994, when it paid the ooms and tannies of the previous dispensation in key positions to retire. The ANC is no stranger to realpolitik. 
 
For the MPC – which is a stranger – the baggage of the old ANC comrades has the potential to sink any reform agenda and anger the electorate into kicking them out after only one, failed term in office.  
 
It is imperative that the old comrades be swiftly terminated and the ANC’s lingering influence in the high offices of government be completely ended. 

Martin van Staden is the Head of Policy at the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.

https://www.politicsweb.co.za/opinion/its-simple-but-expensive

This article was first published on the Daily Friend.