Dear Folks

Initially I wanted to entitle this newsletter ‘The Untouchables’ after I saw I beloved our President do a mea culpa on television regarding the power crisis. I was particularly touched when he accepted ‘collective responsibility’ – on behalf of the cabinet – for the mess in which we find ourselves. And then I started to think that how naïve I am to equate responsibility with accountability.  I always thought that they go hand in hand. So let’s do a comparison with the OHS Act. The way I understand the  Act is that if you, as an employer, have a responsibility in terms of sections 8 and 9 of providing employees and persons with a safe and healthy working environment, you are accountable if you fail in this task. If this responsibility becomes a legal duty and you fail in this duty, you are criminally liable.

Assuming there is a distinction between moral and legal responsibility, the chief executive officer of South Africa, obviously feels that he and the cabinet (read section 16(1) chief executive officer and his section 16(2) Assignees) have no legal responsibility and thus no liability for the mess in which we find ourselves. Sections 12 and 34 of the Bill of Rights to the Constitution, which I equate with sections 8 and 9 of the OHS Act, compels the chief executive officer of South Africa and his cabinet to provide us with a safe and healthy environment. So surely this moral responsibility becomes a legal responsibility (duty) since the duties of the State are contained in the Bill of Rights? If this is the case, the chief executive of South Africa and his cabinet are collectively liable if they fail in this duty. Surely if you are deprived of electricity for hours on end, it impacts upon your security or could cause harm to your health which, in turn, is linked to a collective  irresponsible act or omission of the part of cabinet and is punishable?.

 We know that the Ministry of Safety and Security has often failed to provide us with security of person because they have lost and settled numerous court cases in this regard. Unfortunately the tax payer foots the legal costs and damages and liability seems to end with the Ministry. It is synonymous with liability ending with a subsidiary corporate body as opposed to the holding corporate body (cabinet) without ministerial personal liability. It’s lovely to work with tax payers money or, for that matter, funds, albeit Road Accident or Workmen’s Compensation. You can just knock yourself out! I read the other day that the Eastern Cape Provincial Government unsuccessfully defended a challenge of a few thousand rands by a pensioner right up to the Constitutional Court, thereby incurring a couple of millions rands debt for tax payers. And who is paying that Ekurhuleni chief of police’s legal costs as he fights tooth and nail to prevent a conviction of drunken driving? Ja that one…….Such flattering pictures of, at face value at least, inebriated  bloated pot bellied metro cops who are meant to be our guardians. They look like a bunch of gommies but I had better stop there. Perhaps McBride has been watching too many mafia movies because he sure seems to be acting like a godfather. If it is indeed true that the metro police force is guilty of nepotism and other malpractices which  potentially endanger persons safety then perhaps the inspectors of the department of Labour can use their UK counterpart’s example and bring charges against them in terms of section 9 of the OHS Act. But that’s ofcourse a long shot. Our police have a history of kragdadigheid that they cannot appear to shake. If I was an inspector of the Department of Labour and I had seen that hideous display of brutality when the SAPS, dressed to bliksem, ‘raided’ those clubs in Stellenbosch, I would have initiated an investigation against them in terms of section 9 of the OHS Act. Surely their conduct, which is clear on the CCTV footage, amounts to a prima facie contravention of section 9? Perhaps we should inform those students that they have the right to approach the chief inspector in terms of section 32 of the Act and ask for a formal inquiry. The chief Inspector may, but must, if presented with prima facie evidence of (SAPS) activities that harm persons (CCTV footage) order a formal inquiry. The OHS Act binds the State and its organs. I would relish representing those students! You can’t trust the SAPS to investigate itself. It’s like the ruling party investigating the arms deal. But then again folks, we must remain positive despite the fact that integrity and competence are no longer valuable assets. We must polish that rainbow back to its former shining glory. All those greedy paws, helping themselves to the pot, have tarnished it. Look up. You will see blue skies through the tears. (Rocky Horror Show).

I must apologise for my delinquency as regards newsletters so far this year but I have seriously never been so busy in my life. In fact I have been turning work away and giving it to my opposition. I have literally been on a plane two to three times a week doing what I like most, representing employers and mines at investigations and formal inquiries. My cases don’t seem to go to court. I hope to do a workshop roundtrip towards the end of the year to take stock of where we stand and to share some of the valuable experiences that I have gained lately and will keep you informed.

While I’m typing I am watching that great movie “Bonfire of the Vanities’ with Bruce Willis, Tom Hanks, Morgan Freeman and Melanie Griffiths. I can see it over and over again and those of you who missed it due to loadshedding, (a term I first heard in a porno movie) go out and rent the DVD. It will shed light (oops) on the skewed political / racial situation we find ourselves in  where, a stupid prank by Free State University idiots and which has a  humiliation result, hogs the international headlines (ad nauseam on SKY News), while xenophobic killing  of Somalis and other foreigners are more-or-less glossed over. Perhaps a snuff YouTube of those killings would have attracted more condemnation and international outcry?  All those vanities after the Free State University debacle. People scrabbling to condemn and to distance. People being bussed in to protest. COSATU, ANC Youth League and company galvanised into action. All those vanities. Let’s hope that one day we can burn them all in a bonfire.

As Morgan Freeman, my favourite actor says at the end of the film after someone called him a racist pig, ‘You dare call me a racist. Well I say to you what does it matter, the colour of a man’s skin if witnesses perjure  themselves, if a prosecutor enlists the perjurers, a district attorney throws a man to the mob for political gain and men of God take the prime cuts. Is that justice? I don’t hear you!!!!! I will tell you what justice is. Justice is the law and the law is man’s feeble attempt to set down principles of decency. And decency is not a deal, an angle, a contract or hustle. Decency is what your grandmother taught you. It’s in your bones. Now you go home and be decent people’. Politicians take note.

As always.

Your Devil’s Advocate.

‘It’s nice to be at the top. Impervious, untouchable and isolated by wealth and power. Master of the universe. A great height from which to view the rest of the world. A great height from which to fall’. Bruce Willis. Bonfire of the Vanities.