The difference between morality and legality
March 4, 2005
 By Terry Bell
Corporate competition and the drive for profit are two of the reasons for the high accident rate and carnage on South African roads. And it is this that lies behind the strike by truck drivers this week.
They complain that they are generally paid a low basic wage - a minimum of R500 a week - and are forced, by economic necessity, to breach safety rules. Many are not paid overtime, but have their wages calculated on the number of kilometres driven.
This causes drivers to drive faster for longer in order to make up reasonable pay packets and spend time with their families. But it is they who are breaking the law, not the bosses who create the conditions which force them into this situation.
The employers may be held morally responsible for using legislative loopholes to reduce costs and enhance profits, but it is not illegal to do so.
They do not directly encourage the sometimes fatal breaking of the law on hours of work, they merely create the conditions in which many drivers feel compelled to breach the regulations.
This happens in almost all sectors of the economy, especially now that outsourcing and the use of short-term contract labour is becoming increasingly prevalent.
However, the department of transport, in the case of the truckers, and the government as a whole do not approve of what is happening. It is in breach of the spirit of the law and of the constitution.
Using their right under the labour laws of the land, the truck drivers are negotiating their wages and conditions. This includes, in the face of intransigence by the employers, exercising the constitutional right to strike.
This is the reverse of the situation under apartheid. Then many, if not most, employers colluded with the government in the discriminatory treatment of workers not classified "white".
But the degree of collaboration went much further, especially in terms of security planning. Details of how leading companies worked hand in glove with the apartheid military and police force in enforcing state policy are now being unearthed as part of the relaunch of the apartheid claims cases.
These cases claim billions of dollars in compensation from companies that allegedly aided and abetted the "crime against humanity" that was apartheid.
The first and most prominent of these law suits was headed initially by US lawyer Ed Fagan, now widely derided as a flamboyant charlatan and incompetent.
Although it was pointed out to local lawyers early on that Fagan had a less than savoury reputation, a number were swayed by his ability to gain national and international media coverage.
They allowed Fagan to dictate that adequate research into the claims was unnecessary as he embarked on a "name them and shame them" campaign to get major corporations to settle out of court.
This was a tactic used in the World War 2 Holocaust cases that initially catapulted this small-time New Jersey lawyer to international fame.
Dumisa Ntsebeza, the leader of the local Apartheid Claims Taskforce, which initiated the first claim with Fagan, now admits he was taken in by the man he now refers to as "the abominable showman".
"The corporations named took one look at the claims - and decided to fight them," says one of the lawyers involved. But although the cases were dismissed by Judge John Sprizzo, the right to appeal was also given.
Fagan, who faces several malpractice suits and claims amounting to millions of dollars relating to some of his earlier work, is now nowhere to be found.
However, he managed to rally several hundred former mine workers to another case he claimed to have filed against Sasol, Anglo American and Gold Fields.
No case was ever filed and Fagan has now disappeared. The hopes of the mine workers are now dashed.
But news that an application to the US courts for leave to file "an
elaborated and amended complaint" will again raise the hopes of thousands of earlier claimants.
Whether the appeal to amend the original complaint will succeed is moot. But even without an expanded complaint, an appeal to have the cases heard will go ahead and has a reasonable chance of success.
This will result in evidence about the collusion of companies with the apartheid state and the treatment meted out to workers under that system being aired. All of which could prove profoundly embarrassing, especially to companies now falsely laying claim to anti-apartheid credentials.
But whether such behaviour was illegal or merely immoral will be open to conjecture. And, as the truck drivers are now discovering, there is a difference between legality and morality.
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