National security and the constitutional right to join military trade unions: is constitutional amendment an imperative?

Abstract

The unionisation of the South African Military Forces has tested both lawyers and the South African legal system. However, there is very little academic commentary on this important subject. In this article, the policy, which allowed the unionisation of the South African military, the influence of the policy on national security, and the reasons why the policy failed, are discussed. It is argued that, in the South African context, allowing unions in the Defence Force was a big mistake. Such conduct has sacrificed the country’s national security at the altar of soldiers’ right to form and join labour unions. Unions have polarised the military – their propensity to embark on labour actions or threats to embark on such actions undermines the country’s national security.
An analysis is made on whether or not the Constitutional Court erred in interpreting certain provisions of the Constitution, especially section 23(2), which states, “every worker has the right to form and join a trade union, to participate in the activities and programmes of a trade union and to strike.” This will be done by examining some constitutional and legislative provisions, which deal with the Defence Force. An argument will be made as to whether members of any organisation may really be classified as workers. It will be respectfully argued that the Constitutional Court misdirected itself in interpreting the word ‘workers’ in section 23(2) of the Constitution to include members of the Defence Force. Lastly, it is argued that in the South African context, allowing unions in the Defence Force has proved to be an Achilles’ heel. Recommendations are made about steps the country should take to ensure that military forces are not unionised.