By Siyabonga Hadebe
THE search for emancipation for scores of South Africans who continue to be denied justice is becoming extremely frustrating, partly due to the courts and conservatism ruling them.
The justice system unfairly prioritises those with resources over indigents. This is evident as courts rush to entertain multimillion-rand cases involving companies and individuals with political influence.
The rapid response to these litigations conceals the dark side of justice in South Africa: the inefficiency of courts and inaccessibility to courts for millions.
When individuals access courts, for one reason or another, they still face serious hurdles due to the law and its designs, which means justice is not just delayed but also denied.
The general concern is that the legal system tends to obsess over rules, some of which are antiquated or nonsensical, rather than ensuring justice is served. The tension between strict legal interpretation and the pursuit of justice is a perennial issue in contemporary legal discourse.
The traditional approach to law, which emphasises a strict and literal interpretation of legal texts, is valued for its predictability and fairness. This method treats all individuals equally under the law and limits judicial activism, ensuring that the judiciary does not overstep its mandate.
However, this article argues that this rigidity can lead to unjust outcomes by failing to account for the unique circumstances of individual cases and by hindering access to justice for disadvantaged groups.
This article also contends that an ideal approach to legal interpretation involves balancing the law’s purpose with its literal meaning. Such an approach allows judges to ensure that the law serves all members of society equitably, particularly those historically marginalised.
It considers a recent AFGRI Animal Feeds v NUMSA case, in which the Constitutional Court prioritised adherence to established legal frameworks to maintain consistency and predictability. This decision overlooked the social and economic realities of the workers involved. This case exemplifies how strict adherence to legal formalities can hinder justice delivery without considering broader social contexts.
The traditional legal approach is deeply rooted in the idea that a transparent and predictable legal system is essential for fairness and justice. Courts are expected to provide consistent and predictable outcomes by applying the law strictly according to its text.
This consistency is crucial for maintaining public confidence in the legal system and ensuring everyone is treated equally under the law. However, this approach often fails to consider broader social and economic contexts, leading to outcomes that may be legally correct but morally and ethically unjust.
For instance, an overly strict application of property law might prevent historically dispossessed individuals or communities from claiming rightful ancestral land. In such cases, the law’s rigid application does not account for historical injustices and the need for redress.
Therefore, it is essential to balance the strict interpretation of legal texts with a consideration of the law’s purpose and the broader context. Simplifying legal procedures and providing resources can ensure that the law serves all individuals equitably, not just those who can navigate its complexities.
Equity and Africanisation of the law
The law is a living document that must adapt to societal changes. Equity principles act as a catalyst for this evolution. These principles, a set of guidelines and practices within the legal system, focus on fairness and achieving just outcomes, even when strictly applying legal rules might not achieve that result.
They ensure the legal system remains inclusive and reflects evolving values, ultimately promoting a more just society. Therefore, the transformation of South Africa’s legal system provides a compelling case study in balancing legal principles and justice.
With the advent of democratic dispensation and a brand-new constitution, there was hope that the law would side with the people. This entailed moving away from the conservative and positivist apartheid legal culture to one that reflects the culture, values, norms and aspirations of Africans.
The late Yvonne Mokgoro, among others, emphasised the contrast between the Western preference for abstract concepts and the African world view’s focus on grounding ideas in real-life situations.
For some, the Africanisation of the legal system means replacing Roman-Dutch law with frameworks based on indigenous legal traditions, using indigenous languages in courts, and simplifying legal documents. However, strict textual interpretation of the law poses challenges in a pluralistic society like South Africa, which has a unique history that often fails to account for individuals’ diverse circumstances.
Some scholars have called on South Africa’s legal system to draw on the African philosophy of ubuntu, emphasising reconciliation, community, and fairness. Thomas Bennett states that this “African doctrine of equity” goes beyond strict legal interpretations, urging judges to consider context and societal values.
While ubuntu’s open-ended nature raises concerns about uncertainty, it has significantly reshaped South Africa’s legal landscape towards a more just and restorative system.
While not a codified legal concept, ubuntu is a guiding philosophy in South African courts, fostering “judicial activism of a special type.” This approach allows judges to interpret the Constitution beyond its literal meaning, considering inherent values like fairness, compassion and interconnectedness.
Critics argue that ubuntu, despite its pursuit of a just system, introduces uncertainty due to its open interpretation and might prioritise the collective over individual rights enshrined in the Constitution.
Court asks trade union to stick to its lane and justice hangs
The AFGRI Animal Feeds v NUMSA case offers a pertinent example of the tension between strict legal interpretation and the pursuit of justice. The dispute centred on NUMSA representing several AFGRI employees fired for participating in an unprotected strike.
The union argued unfair dismissal, but AFGRI challenged their right to represent the workers due to its “lack [of] legal standing and authority to act on their behalf.” The Labour Court agreed with AFGRI, but the Labour Appeal Court (LAC) correctly reversed the decision, in my view, emphasising the importance of fairness, representation and access to justice in unfair dismissal cases.
From inception, the case drifted from hearing the possible injustices the workers may have suffered to legalities. Nonetheless, the crux of the case hinged on two critical legal questions that were deeply intertwined.
First, could NUMSA represent these employees in their unfair dismissal fight, given that the union’s constitution, as outlined in Sections 161 and 200 of the LRA, restricted membership to those in the metal and related industries? In other words, did the limitations of NUMSA’s constitution automatically disqualify them from representing workers in other sectors?
Secondly, the case challenged the power balance between a union’s internal rules and employee rights. Did NUMSA’s membership restrictions supersede the employees’ fundamental right to choose their representative in this dispute?
This case determined the weight a union’s constitution held when representing employees in individual cases and, conversely, the degree of freedom employees had in selecting their advocate.
In presenting its argument, AFGRI, the former employer of the dismissed workers, pointed to Section 161(1)(c) of the LRA as their weapon. According to them, this section restricted representation in court to a trade union of which the employee was a member.
Since the animal feed workers were not eligible for NUMSA membership due to the union’s constitution, AFGRI argued that NUMSA should be barred from representing them.
However, NUMSA countered this with a different interpretation of the LRA by citing Sections 200(1)(b) and (c), which grants trade unions the right to act on behalf of or in the interests of their members in disputes.
The trade union argued that the employees’ right to choose their representative was paramount and that the limitations of the union's constitution should not stand in their way.
In a decision of significant consequence, the ConCourt overturned the LAC’s judgment. It ruled that NUMSA lacked legal standing because the dismissed employees fell outside the union’s registered scope.
The trade union was deemed to have no authority to represent the dismissed employees because its constitution restricts membership to workers in the metal and related industries. Additionally, trade unions within the animal feed industry could admit these employees.
Justice delayed is justice denied
The ConCourt’s decision could be a significant blow to justice and fairness. It restricts the ability of trade unions to represent workers across sectors, relying only on its constitution to interpret the relevant LRA clauses.
Therefore, this raises questions about the balance between legal principles and social justice. Nevertheless, this interpretation will soon run into problems due to the rapidly changing market, where the gig economy redefines traditional rules of work and sectors.
The AFGRI Animal Feeds v. NUMSA ruling and a 2023 High Court decision that favoured Anglo-American in an environmental damage (class action) case in Zambia highlight the pressing need for a delicate equilibrium between legal precision and social justice.
In both instances, substantive aspects, particularly the plight of victims and their need for remedy were not covered as courts only considered the broader legal principles and the importance of procedural correctness in upholding the rule of law.
The main challenge in lawsuits against corporations is the inherent power imbalance between the corporations and the affected individuals. The legal proceedings often portray these individuals as formal equals in legal relationships, which obscures the evident inequalities of power and resources.
Consequently, victims are at a considerable disadvantage in corporate litigations, as corporations have substantially more resources to fight lawsuits and can exploit this imbalance to their advantage.
Strict legal interpretations, while necessary for maintaining the “rule of law”, can overlook the needs of disadvantaged groups. Laws should serve all citizens, not just those who can navigate complex legal systems.
This focus on procedural correctness can render the law irrelevant to those it is meant to protect. As Dutch scholar Grietje Baars argues, the legal system might be inherently biased towards corporations and property rights, potentially sacrificing social justice for economic progress.
Legal precision should ignore the social realities of those seeking justice because a narrow focus on procedure risks the law perpetuating injustice. NUMA’s attempt to represent fired workers highlights this tension.
Perhaps re-examining labour laws might be necessary for the evolving workplace — racial disparities in the justice system seriously disadvantage marginalised groups. Equity principles could empower the dismissed workers, but funding remains a hurdle despite the referral to lower courts for a new hearing.
In conclusion, pursuing justice within the legal framework necessitates striking a balance between strict legal interpretation and justice. While strict interpretations uphold fairness and predictability, they can miss the bigger picture in individual cases.
Equity principles, like ubuntu, offer a more flexible approach to addressing social issues and historical injustices. The AFGRI Animal Feeds v. NUMSA case highlights this tension — legal precision versus social justice. The law must adapt to changing realities to ensure equal treatment for all.
Siyayibanga le-economy!
Hadebe is an independent commentator on socio-economic, political and global matters. The views expressed here are his own.