Is Judge Desai really independent?

Images have been circulating on various social media platforms for around a week now, depicting someone who certainly appears to be Judge Siraj Desai, currently a member of the Western Cape High Court Bench, depicting (him) in what is alleged to be an ANC meeting. (See images here, here and here.)

Our Constitution, in section 165(2) sets out clearly the rights, responsibilities and confines of our Judiciary, and states: “The Courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

I have written to Judge Desai, via his registrar, requesting his confirmation or otherwise that it is indeed him depicted in the photographs. He has, to date, not replied.

If it is indeed the Honourable Judge, then a myriad of problems arise, not least of which is a huge question mark over his ability to adjudicate impartially, and without fear, favour or prejudice.

As matters stand, Judge Desai has presided over a great number of cases in the past involving political parties, and more particularly opposition parties. If he indeed has this close-up and cosy relationship with the ANC, and more particularly with ANC Ward 115 and Councillor Anwa Peters, participating in what is termed “a meeting between the Councillor and community leaders in Walmer Estate ahead of the 9 December 2020by-election” then this is very problematic, and naturally calls into question his independence and objectivity when dealing with matters involving opposition parties, and more particularly, those involving the Democratic Alliance.

If this is the Judge, then he should naturally have declared his cosy relationship up front each time such a matter was before him, and recused himself from the adjudication of such matters, or at the very least, offered to recuse himself, giving the parties the opportunity to apply their minds to his independence and objectivity.

Such a declaration would also have given the Judge President the opportunity to allocate a truly independent and impartial adjudicator. This would have avoided the obvious difficulties that now arise with regard to independence and impartiality pertaining to past matters already decided by Judge Desai.

It is so that Judge Desai will retire in the next two weeks, but if this indeed him depicted in these photographs, then the consequences do not cease due to his retirement. In the absence of a response from Judge Desai on the matter, I have today escalated the matter to the Office of the Chief Justice, requesting an enquiry into the circumstances surrounding these photographs. The result thereof will determine what, if any, further steps should be taken with regard to this matter.

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DA opposes National Minimum Wage Commission’s proposed increases

The Democratic Alliance (DA) has submitted its input to the National Minimum Wage Commission on the annual review of the National Minimum Wage (NMW).

We oppose the proposed above-inflation increases and support the minority recommendations in the report, which are premised on the need to avoid and minimise job losses.

Any adjustment to the NMW must take into consideration its probable impact on jobs. This is especially important at a time when Covid-19 and the associated national lockdowns have wreaked havoc on the economy. Retrenchments are on the rise and unemployment is at an all-time high: 43.1% in the 3rd quarter of 2020 on the expanded definition of unemployment, according to Statistics SA’s latest Quarterly Labour Force Survey. Growth forecasts, meanwhile, remain dire.

In these circumstances, it would not be wise to increase the NMW by 1.5% above inflation over the next two years or to increase the minimum wage by 16.1% for farmworkers and by 20.65% for domestic workers – all of which adjustments are recommended by the Commission.

No sector will be able to absorb such increases at a time of serious economic decline. As it is, the domestic service sector has been particularly hard hit by Covid-19 with many employers struggling to keep on their domestic workers. In the agricultural sector, research has shown that large legislated wage increases cause extensive job losses. A double-digit increase in the minimum wage will in all likelihood lead to increased mechanisation resulting in even greater job losses in the agricultural sector. Then too, many parts of the country are still trapped in a five to seven-year drought cycle, which has negatively affected the agricultural sector.

The DA supports sustainable wage increases in the agricultural- and domestic service sectors. We do not believe that increases should be forced by way of regulation. Increases should be determined by employers and trade unions entering into negotiations. With due regard to NMW legislation as it stands, however, the DA concurs with the minority recommendations in the report.

The DA urges the Commission to take the current economic climate into consideration and reassess its recommendations. The DA does not support legislated minimum wages but fully understands the reality of National Minimum Wage legislation. In order to work within the legislative framework, the DA hereby calls upon the Commission to put any further increases on hold during this unprecedented period of negative growth.  The government itself has had to renege on the three year wage agreement that it entered into with public servants. In the same way, many employers will not be able to sustain the increases currently proposed by the Commission.

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