CAPÍTULO DIECISEISAVO: “DELITO CONTRA LOS PODERES DEL ESTADO Y EL ORDEN CONSTITUCIONAL”

There is no general agreement as to a universal definition of conflict as there are many

definitions as those295_{seeking to define it. According to Bosch}296 “conflict exists ‘where

two or more parties with perceived or real differences over values or goals (often as an inherent consequence of structural differences in society) engage each other either over scarce resources, or control over resources. Such engagement in the workplace is sometimes referred to as a power struggle.” This definition of conflict touches upon important issues both that conflict is not always a concrete hegemon. It can be subjective given the element of perception that a conflict actually exists and underneath it may then emerge that it does not while in certain respects it may actually

be real and existing over concrete issues.297 _{This definition however tends to be}

skewed towards resources and control over resources as the only engagement from

which conflicts derive. The aspect of power struggle however borrows from Marx’s298

conception of class struggle over control of human behavior by masters over the servants whereat resources get to be used as tools to control the latter. In that light one group (capitalists) seemed to gain an advantage, especially capital or the employer, it would of necessity use it to dominate and oppress the other group (workers) thereby enhancing its own position. Wiese provides a short definition, which states the following: “conflict is an inherent part of human relationships. A conflict

292 _{Miller & Sarat (1981) 55} 293 _{Bosch et al. (2004) 2} 294 _Ibid

295 _{Bosch et al. (2004) 2; Wiese (2016) 3; Pretorius (1993) 12 and Patelia and Chicktay (2014) 6} 296 _{Bosch et al. (2004) 2}

297 _Ibid

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arises when parties perceive a divergence in their needs and interests.”299 _This

definition is favourable to this study in that besides being concise it acknowledges that human society has divergent needs and interests and when those needs and interests are deprived or frustrated, conflicting responses may arise. Another plausible way to

look at conflict was put forward by Puttman and Poole300who defined conflict as “the

interaction of interdependent people who perceive opposition of goals, aims, and values and who see the other party as potentially interfering with the realisation of these goals.” The definition highlights three general characteristics of conflict, namely: incompatible goals, interdependence and interaction between the parties as prerequisites of a conflict situation between the parties. These are an intricate part of a conflict situation in that it is never isolated from interaction and an interdependent relationship of some sort especially in labour disputes and somehow involves goals, whether they are met or otherwise. This study adopts a working definition of conflict after review of the above highlighted definitions. Accordingly, a “conflict exists when one party has a need dependent on another with whom they interact and share an interdependent relationship and that need is unmet for some reason or the other giving rise to a claim or battle over incompatibility of goals.” This definition is favourable to this study in that it makes use of unmet needs and goals, acknowledging that they are as diverse as conflict situations. Further, this definition brings in the aspect of the existence of an interdependent relationship between the parties in conflict, occasioned by a contract of employment between employer and employee in the case of labour disputes.

Conflicts can exist in a labour relationship where subordinates feel superiors have not distributed resources fairly. From another angle, value conflicts pertain to differing ideologies; religious beliefs; cultural norms and ethnicity such as those between Muslims and Hindus in Pakistan and India; Muslims and Jews in the middle east, Zulus and Xosas in South Africa, the Shonas and Ndebeles in Zimbabwe and the Ngwato and Kalangas in Botswana, Tamis and Sinhalese in Sri Lanka and competing

nationalist groups in Eastern Europe to mention a few.301

299 _{Wiese (2016) 3}

300 _{Putman and Poole (1987 (cited in Miller Organisational communication approaches and processes}

(2012) 162

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The conflict stage is regarded as the second stage after a grievance has been

experienced.302_{The party which feels aggrieved or wronged (from the grievance stage)}

may elect to confront the party that offended it at which stage it does communicate its

feelings of injustice or perceptions thereof.303 _{This study however favours the view}304

that argues that disputes start as grievances that escalate to conflicts and then become disputes (unresolved conflicts). The view has gained more support than the one which suggests that grievances result from conflict. However, once conflict is realised what is left is to have it resolved within the organisation. When it failes to be resolved, it degenerates into a dispute, roping in an independent third party to aid in resolving it. This is the subject of the next sub-section.

It is discernible from the foregoing discussion and views that once an aggrieved party lays a claim, a conflict is declared and requires resolution or relief. This is that stage when an attempt is made by both parties to settle conflicts by reaching compromise through negotiation within the confines of the firm before seeking outside influence or

before conflicts become disputes.305 _{This is the approach termed internal conflict}

management where grievance procedures and conflict management systems developed within the organisations are used to resolve grievances and conflicts between the employer (management) and employees (unions). This is the approach that advocates for a systems approach to conflict management which fosters more of

what Czech Republic306 _{and Romania}307 call ‘amicable dispute resolution’ aimed at

relationship preservation between disputants. Internal dispute resolution as such presupposes that organisations should depart from ad hoc approach by which matters are resolved on a case by case basis towards one by which focus is rather placed on a systematic integration of conflict management approaches into its day to day

business practices.308 _{The view was motivated by Rowe}309 _{who conceived and}

tendered what became known as an “integrated conflict management system” as being part of the leading-edge-developments in dispute settlement and taking center

302 _{Nader and Todd (1978) 212} 303 _Ibid

304 _{Nader and Todd (1978) 212; Miller & Sarat (1981) 55; Lynch (2003) 99 and Lippman, Law and} society (2015) 213

305 _{Bendeman (2007) 143}

306 _{REDICT (2013) 3 (See Colombo (2012) 71)} 307 _{Roşioru (2017) 20}

308 _{Lynch (2003) 99} 309 _Ibid

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stage as organisational development strategies.310_{The idea that seems to permeate}

the thrust of integrated conflict management is preventative management of conflict

so that it does not result in dysfunctional disputes within organisations.311_{As such the}

former traces the sources of disputes and envisage a proactive but strategic approach

to anticipate them and formulate approaches to prevent them.312_{Such a view is always}

going to be at loggerheads with what is termed as the "choice theory" requiring the making of important decisions to be solely guided by the good of their firms based on an objective and definable "big picture." This supposes that organisations would install grievance and conflict management policies and procedures to enable parties to a grievance to attempt resolve them through internal structures and mechanisms within the establishment. As such, management, on behalf of the employer, ought to make decisions that promote the best interest of the firm (big picture and choice theory), even if it means trampling the rights of a worker who is considered unruly or disturbing such bests interests. In that light, the focus proposes a somewhat less likely attitude to negotiate with a party or conduct perceived to be acting without interest on the good

of the organisation.313 _{Such an approach would tend to be lopsided focusing on the}

needs of the employers while restricting or constricting those of employees, as Karl

Marx’s314 _{put it, rendering any attempt at reaching a negotiated settlement by the two}

opposing groups near futile. Understandably, from the foregoing, when conflicts are not resolved internally or at least to the satisfaction of either party they may be escalated to the courts or ADR as the case may be, for resolution, settlement and enforcement.

Courts or ADR as dispute resolution mechanisms, are considered later in this study. By its nature, this study is not focused on conflict management per se but on dispute resolution, the efficacy or otherwise thereof in resolving labour disputes in Botswana, South Africa and Zimbabwe. The fact of the interrelated nature that conflict is with grievances and disputes necessitated the treatise of conflict in this study, though briefly so, but will not be considered further in this study. The next section deals with

310 _{Lynch (2003) 99} 311 _ibid

312 _{Morrill “The Customs of Conflict Management among Corporate Executives” (1991) 872} 313 _Ibid

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disputes, paying special attention to the meaning, causes, nature and resolution of disputes.