Dealing with Grievances in the SANDF
The scenes of running battles between police and striking soldiers on 26 August 2009 in front of the Union Buildings, Pretoria, came as a shock not only to South Africans, but also to the international community.
Henri Boshoff. Head Peace Missions Programme. Institute
for Security Studies, Pretoria Office and Lindy Heinecken. Professor
of Sociology at Stellenbosch University
The scenes of running battles between police and striking soldiers
on 26 August 2009 in front of the Union Buildings, Pretoria, came as a
shock not only to South Africans, but also to the international
community. People immediately asked whether this is a mutiny, how will
it influence cooperation between the South African Police Service
(SAPS) and the South African National Defence Force (SANDF) and will
this incident and a possible backlash influence the 2010 Fifa World Cup?
The question, however, must be asked why soldiers felt the need to
protest in front of the Union Buildings in order to bring their
grievances to the attention of government.
This situation is not unique to South Africa. There has been an
increase in military unionism in the post-Cold War era in many places,
due to a range of factors. Even in the UK where military unions are
considered the “final taboo” we saw the establishment of the British
Armed Forces Federation, which has come out strongly in defence of the
rights of military personnel.
In South Africa the issue of how to resolve grievances of members of
the Security Forces goes back to 1994. After 1994 the police and
prisons services were subject to widespread labour unrest, eventually
culminating in labour rights being extended to these sectors under the
new Labour Relations Act (LRA), 66 of 1995. This left only the SANDF and
Intelligence Service outside the scope of the LRA. Following the
International Labour Organisation (ILO) Convention No 87 of 1948, on
the Freedom of Association and Protection of the Right to Organize, the
SANDF was granted reprieve to create its own labour relations
regulations.
Of interest is that the former South African Defence Force (SADF)
anticipated that military personnel may want to belong to trade unions
and swiftly ratified Section 126 of the Defence Act, 44 of 1957 in
September 1993 to prohibit military personnel from joining or belonging
to a trade union and from striking or participating in the activities
of the union.
The SANDF after 1994 realised that they needed to put in place some
structure to address their own labour issues internally. In 1996 they
established “Forum Structures” for different rank groups to address
individual and collective grievances and complaints or suggestions to
higher authorities. These Forums made no provision for collective
dispute resolution and failed to pre-empt trade unionism. In fact, one
could argue that they fuelled support for unions, given the
inefficiency of these structures. On 26 August 1994, the South African
National Defence Union (SANDU) was established. Nonetheless, the SANDF
was resolute not to recognize or negotiate with any union representing
military personnel, even threatening to prosecute members for doing so.
This was the beginning of a long ongoing legal process that has not
yet been concluded. The legal issues were around the following:
- Joining trade unions or participating in trade union activities.
- Participating in strikes and acts of public protest
- Collective bargaining
On 26 May 1999 the Constitutional Court (CC) confirmed that Section
126B of the Defence Act 44 of 1957, prohibiting military personnel from
joining trade unions, participating in strikes and acts of public
protest, was indeed unconstitutional. This was a victory for SANDU
leaving them with the sticky point of “collective bargaining”. This is
one of the points that are still unclear and a bone of contention,
despite numerous court cases.
The legal processes resulted in the enactment of Chapter 20 of the
General Regulations for the SANDF published in the Government Gazette of
20 August 1999 (hereafter the General Regulations). The General
Regulations provided, amongst others, for the organisational rights of
military trade unions (MTUs), the establishment of a Military Bargaining
Council (MBC), Military Arbitration Board (MAB) and the procedures to
refer matters to the High Court in case of dispute. For the first time
in the history of South Africa, military personnel could now legally
belong to unions providing they met the 5000-member threshold
requirement for registration and 15000 for recognition to serve on the
MBC.
This issue is at the core of the current standoff between the SANDF
and the two trade unions, SANDU and the South Africa Security Forces
Union (SASFU). The SANDF is disputing the fact that the trade unions are
reaching the threshold, basically baring them from the MBC.
Remarks by the Minister of Defence, and the MK and APLA Veterans
organisations that they do not like trade unions and by Judge William
Heath that the labour law is not applicable to the police and soldiers
is misconstrued and contrary to the principles enshrined in the
Constitution. The fact that the armed forces have continued to manage
labour relations from a typically unitarist perspective, while the
legal dispensation supports a more pluralist approach has ultimately
led to a confrontational approach to employee relations in the SANDF.
Unions do not create grievances. It is the inability of management
(or in this case military leadership) to resolve grievances or address
the aspirations of members that led to the formation of unions in the
first place. Where the grievance procedures are not functioning properly
(over 4000 grievances remain unresolved); where the chain of command
is dysfunctional and political leadership remains insensitive to the
needs of soldiers; what alternatives remain for soldiers but to
protest? Unfortunately our history shows that militant action works and
this where things have gone horribly wrong. Unlike other employees, we
have disgruntled armed soldiers voicing their anger publicly at the
State. For the sake of the country it is important to break the impasse
between the management of the SANDF and the soldiers and so bring
stability to the SANDF. For this, there needs to be a spirit of
cooperation, not suppression. Surely the ‘defenders of our democracy’
have the right to be heard?
