The Need For Amendments To Legislation

As time goes by, to quote the song, things change whether we like it or not. As society with all its intricacies changes, it also means that legislation, rules and everything associated with them need to be changed too. Now by change I don’t mean appointing a commission of enquiry to find out what is happening and then filing the report for posterity; I mean appointing people who are experts in the specific field and who have the skill to draft amended legislation that reflects the needs of the present-day circumstances in that specific facet of society. The more pro-active the better. If it is a reactive deed to attempt to deal with an existing problem, you are probably already too late and too much harm has already been done. This is not a lecture, which is not one of my strong points; it is a fact of life as well as a generally accepted business principle, even according to American DIY authors such as Covey and Toffler. Even the Girl Guides will tell you to “Be Prepared”.

How Not To Amend Legislation

I find particularly disturbing the so-called management style of certain senior government officials (of the “then” as well as the “now”) who rave and rant when they “discover” too late that the legislation they are supposed to administer is inadequate to their objectives. Then immediately everybody in the country who is affected is threatened that immediate action will be taken and any transgressor of the failed legislation will be “locked up”. You want a few examples? Well here they come. In 1990, before drafting the 1993 COIDA, officials of the Compensation Fund investigated Labour Brokers (yes, they’ve been around for that long – and longer). We (I was part of the team) discovered serious loopholes in the old legislation as far as Labour Brokers were concerned and we therefore included them in the definition of an “Employer” in the new COIDA. In so doing, we neatly and effectively brought all Labour Brokers to the same level as “conventional” Employers. As a consequence, the minister of Labour mentioned recently that the only labour Act that adequately recognises (and therefore presumably, “deals with”) Labour Brokers is the COIDA. How this could have been possible when the best labour law minds of this country were advising the minister in respect of all other labour legislation, I do not know. All I can say is that only when organisations such as COSATU started making loud noises about the “malpractices” associated with Labour Brokers did the politicians and the high officials get onto their podiums and promise that these “monstrosities” will be banned. See what I mean? Unlike the case with the COIDA, no pro-active administrative steps were taken. Instead, the politicians spurred on by their constituents blindly demand that the baby be thrown out with the bathwater. I will not for one moment dispute the fact that the system is in some cases being abused; as I saw in the early nineties. But must bad management be an instrument to score political points? The question begging an answer is: if it was so easy to incorporate Labour Brokers into the COIDA nearly twenty years ago, why haven’t they yet been brought into the fold as far as the other labour legislation is concerned?

The Occupational Diseases in Mines and Works Act, 1973 (ODMWA) is another amazing example and the only one that I have space left for.

Over many years and I mean at least 50 years, there were commissions of enquiry investigating the possible incorporation of the compensation part of the ODMWA into the Workmen’s Compensation Act, 1941, which later became the COIDA. After many years of deliberation the Niewenhuizen Commission of Inquiry recommended in June 1981 that the compensation aspect should, in fact, be incorporated in the Workmen’s Compensation Act, 1941. Cabinet accepted this recommendation and we therefore did so when we drafted the 1993 COIDA. So at last when the 1993 COIDA was tabled it seemed to be a fait accompli. But we were in for a surprise: one honourable right wing Member of Parliament who, incidentally, had also been a member of the Commission of Inquiry and who had brought out a minority report objected. His reason for objecting was that he hadn’t been consulted during the drafting process! Notwithstanding the fact that the new legislation was in line with the recommendations of the committee of which he was a member, we had to withdraw the legislation! Despite my objections (at that stage Latin was still understood), the nationalists did not want to embarrass their ex-colleagues and, to cut a long and sad story short the 1993 COIDA was passed on the condition that the repeal of the ODMWA compensation should be left out. The reason for this intelligent move was that miners wanted lump sums and not pensions. While you’re working that one out in your head, refer to the present (paltry) lump sums being paid under ODMWA and compare them with the value of the life-long pension that the COIDA pays. So this is the reason why you still sit with a dichotomy in legislation. But do not blame me, else I might just tell the whole of the rest of the story.

I can quote numerous situations where legislation was destroyed by political agendas; I have neither time nor the space to do it here.

Moral of the Story

What is then the message? I do not know because it seems that politicians are chosen by the people to make flops on their behalf so that they can later complain about these mistakes. All I know for sure is that it will happen again and again in future. Returning to the two examples and judging from the sideline where I stand, I can assure you it is easy to amend the relevant legislation to solve the problem to some extent. But it will not happen trust me, should you do that you will take away the political mileage and why should a politician be that stupid?

Till next month