Special Hearings — Business Hearings — 1997-11-12

CHAIRPERSON: Thank you, Professor.
QUESTIONS TO PROFESSOR WIEHAHN

<UNKNOWN>: Thank you, Professor.  Can I first refer to your philosophical opening statement that the inability to learn from history.  In order to avoid the situation where human rights have been violated in the field of labour, what would be your recommendations?

PROF WIEHAHN: Well, Mr Chairman, if one goes back in history and I think one can only read in the future if one pages in the past.  That's very important, although there is also another saying which says we cannot fill the future by extending the past.
 I believe that we must learn from history the mistakes we've made and we must try to avoid them in future.  So, I -that's why I say that I've learned from history, but people don't learn from history and I suppose that's why politics is described as the arts of the possible.  
 They're busy with carpe diem, busy with today, but politicians -  but I believe that we should never in future again have so many provisions in the laws that relate to labour.  I think we need a few laws.  I think we've had far too many laws in the past.  
 I've made a study of the laws passed by Parliament.  I've taken the statistics out of the years in the a decade from 1930 to 1940.  On an average of 33 laws per annum went through Parliament.  In the decade thereafter, '40 to 1950 this number jumped up to 47.  In the decade from 1950 to 1960 it jumped over 77 laws or 77 laws went through Parliament per annum and in the previous decade we've had more than 125 laws through Parliament every year.
 We became a nation of law makers and I believe that laws should be the slaves of people and not vice versa and therefore I believe one of the lessons is that we should not go to the law so quickly if we have a problem to solve. 
 We should, number one, sit down and look at the five methods of settling a dispute, namely, first, negotiation.  Secondly, then mediation.  Thirdly, arbitration.  Fourthly, we should then have an enquiry and fifthly, number five, we should have a adjudication.
 If we don't stick to those principles, we're going to repeat the mistakes of the past.  So, negotiation remains the most important.  People don't go to war because of their harmony, they go to war because they differ and that's where I believe negotiation is so important.
 We've achieved quite a lot in this country.  It's remarkable what we've achieved through negotiation.  I believe that should be the formula for the future.

<UNKNOWN>: Thank you.  My next question I would be interested;  you've mentioned that you experienced some resistance from various quarters.  I'll be interested to know how much resistance came from the business community?

PROF WIEHAHN: Mr Chairman, no, I must say at that point the vast majority of the business people that gave evidence to the commission, were in favour of changes.  They didn't know at the time how far we would go.
 I think it was unknown to them, but I believe that I would put it this way;  all were in agreement that the status quo couldn't go on.  We had to change.  They didn't know how far we would go and I don't think - I don't think that they expected we would go so far to clean the slates completely.  
 That is why I think many many businesses were caught on the wrong foot by recommendations, because you must realise that most of the recommendations really came - had their effect right on the shop floor, in the work place.  I think the vast majority of employers were not prepared for the impact of our recommendations.  
 Most of them adapted very quickly, but there were still some resistance.

<UNKNOWN>: My last question.  From your experience and particularly when you were putting together the work of the commission;  how much of complexity was there by the business community.  I know it's always more comfortable to use law, to use similar structures as an excuse for not doing the things that we should be doing.
 We find that in some instances there is no law which prohibits you from doing those things.  How much of that was there in practice?

PROF WIEHAHN: Well, you're quite right.  Number one, I think, the vast majority people and particularly employers as well as trade unions of course, were ignorant of the provisions of the law.
 I would say the finer details of the law.  It was more customer practice that prevailed at the time and that's why I've made my submission goes back right to the beginning of the previous century.  You realise it was a way of living.   The Blacks were under and the Whites were above and that was more or less what determined.  Also the work place situation between managers and workers.  So, to answer your question, I think it was the small customer practice that determined and that is why the codes came in, because I think this study made by the trans-national co-operations as well as the embassies in South Africa, revealed that many things could be done in practice, but I think many of the employers hid behind the provisions of the law which did not really stop them from doing it.
 So it was more customer practice that really determined the practicalities of the employment situation in the work place.

CHAIRPERSON: Thank you.  Dr Graham?

DR GRAHAM: Thank you, Chairperson.  Prof Wiehahn, thank you for your very concise presentation which leaves us - which leaves me with very few questions.  Mr Chairperson will be glad to hear.
 I want to follow on a little bit.  On page 11, understandably you don't go into the reasons for the appointment of your commissions, but I want to suggest to you that in the '60's and early '70's there was a considerably resistance from many people in business to trade unions.  
 I - of course business doesn't like trade unions at any time and anywhere in the world.  I suppose the reverse is as true, but never the less, I think the point you make about hiding behind the law, I don't think there was a huge movement from business to say we've got to include Blacks within the definition of employee.
 Now, what I'm suggesting to you that what brought about that change was the 1973 strikes in Durban and which took place in many other places on an unprecedented scale.  In other words business is determined by self interest.
 I'm not saying that as a criticism.  I am saying that it's a fact of life.  So, if my memory serves me, from about that period of time, there was a more concerted effort amongst some people in business to say we've got to regularise this thing.  We can't have this chaotic situation.  People should have rights.  They should (indistinct).
 Is that true or did the initiative come from elsewhere?

PROF WIEHAHN: No, I think you're right.  I think it's a cumulative effect of many factors that played a role at that time, Mr Chairman.  You must realise as I put in the beginning of my presentation, written presentation, that if one studies the cycle or the wave of decolonisation which started with the independence of Ghana and I think that the whole wave against racism which ended in the Second World War;  as I've said here South Africa continued - from then on South Africa became anti-cyclical.
 We continued with racism, but in any cycle, in any wave, sociological wave, you'll find pressure building up.  This became very evident with the 1973 flame strikes in Durban which spread to other parts of the country together with political movements in the UDF and all the other movements.
 So it was a cumulative effect of pressures building up at the time and there were also requests from the organised labour and business to ask for a new commission - to ask into the commission of enquiry.  It was just at that time that I was advisor and I share the (indistinct) as submitted to you.