CONSTITUTIONALISM AND ITS MALCONTENTS
Tembeka Ngcukaitobi
6 August 2024
Tonight’s lecture is entitled constitutionalism and its malcontents. I propose to defend the constitution despite its critiques and imperfections (no surprise, there) In doing so, I shall address four themes: history, inequality, representation and the place of the judiciary.
Constitutionalism is a unique idea. More so in a democracy. In its raw form, the Athenian inspired impulse of democracy says that the “the people” are both the government and the governed at the same time. As desirable as this idea, it is only an ideal. Never in fact the lived reality of many. When the British introduced the limitations of the powers of the King, through that veritable instrument, the Magna Carta, of the thirteenth century, they did not in fact transfer political power to the people, but to a new political class of parliamentarians.
Later revolutions in France and the United States of America also promised to upend monarchical power, transferring power, once and for all, to “the people”. An area of contention remained: what is the place of legal authority? It was to this question that Alexander Hamilton, one of the founding fathers of the American Constitution, addressed in FederalistPaper78.The judicial branch, he argued was the “will always be the least dangerous to the political rights of the Constitution”. This is because judges “have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” A few decades later the American democracy was the subject of a study by a Frenchman, Alexis de Tocqueville, in a book called DemocracyinAmerica, published in two volumes between 1835 and 1840. He was impressed by the individual freedoms granted by the American Bill of Rights, to all men, which protected the individual from what he called “the tyranny of the majority”. Yet, duTocqueville was not naïve as to who was excluded in the American conception of democracy: native
Americans, enslaved Africans and women. Of concern for him was that the constitution protects people fromdemocracy.
The separation of the judicial function from the political function has been central to the creation of the modern democratic state. It is now part of the larger conception of the state as decentralisation of authority. In the era of colonialism in Africa, a new dimension to the struggle against European conquest, mass murder and despotic government, was the struggle for the Bill of Rights to guarantee human liberty. And the question which once confronted the Americans about deciding how to protect human liberty loomed large. A broader and grander idea emerged: constitutionalism. Africans who first conceived of the installation of a constitutional state did so with their own experiences of colonial disruption and the possibility of its fundamental reversal. So, building constitutionalism required building democracy. And in a sense, this is a contradiction in terms: democracy, in its unrestrained form presents itself as a manifestation of people’s power. But constitutionalism limits people’s power. Unlike the model developed in Athens, modern post-colonial democracy had to be built by the people. An executive function was indispensable. A new phenomenon was the creation of the judiciary as a final check on the exercise of all political authority under the rule of law.
Both the view and the vision of constitutionalism have remained contested. More fraught has been the ideal of an apex judiciary exercising judicial review powers over elected branches of government. Opponents of constitutionalism usually argue that without a “people’s mandate” judges might have authority but no legitimacy. The elected leaders should make decisions with no interference from the judges.Yet, early twentieth century lawyers like Alfred Mangena, Pixley ka Isaka Seme would have pointed to the impoverished nature of the argument.To safeguard rights, they would have argued that one needs a judicial branch that is separate from the government.
Today we no longer have direct representation as it could have been originally conceived under the umbrella of “democracy”. A much smaller group
of people run the affairs of state, ostensibly on behalf of the multitudes. While the justification for this phenomenon is usually functional: “there are simply too many people for direct democracy to work”, it is worth looking at the other contestation, between the people and their representatives. In his study The PrinciplesRepresentativeGovernment, Professor Bernard Manin has referred to the struggle by the elites of Europe forrepublicanism insteadof democracy. The total absence in today’s democratic systems, for instance of the assembly system or the lot system, points to this elitism of the democratic system.
In international terms, South Africa was among the last to achieve freedom and with it constitutionally guaranteed rights, but it is among the leading lights in showing the world what these rights and freedoms mean It has shown that freedom is for all, not some; the rule of law is not only domestic, but global; and accountability matters regardless of race or religion.
Deepening rights contained in constitutions rather than eroding them is intrinsically connected to the function of promoting democracy. Our democracy is enriched, not undermined, by the rule of law and constitutionalism. At the heart of the rule of law and constitutionalism is the judicial function. When our judges interpret the law in a democracy, they are performing a legitimate function. But that legitimacy is not to be taken for granted.
I have decided to speak about the malcontents of constitutionalism. By constitutionalism, I refer generally to a written text, which establishes a system of government, based on universal franchise and characterised by the supremacy of the constitution, enforced by an independent judiciary, underpinned by the rule of law and social equality.To speak meaningfully about constitutionalism in South Africa, the history of the idea is necessary. I do this because it has become common these days to hear of the notion that the Constitution is an imposition from outside.
Once lauded for its promise, the Constitution has been betrayed.1 The preamble of the Constitution recognises the ‘injustices of the past’ and undertakes to correct them.2 But what are the ‘injustices’ to which the Constitution refers? And where does the Constitution come from? What were its founding influences? Why should we stand by it, even as political forces seek to destroy it? I believe that the reason lies in the history of the Constitution itself. An enduring feature of the dream of the founders of the African National Congress was to end racial inequality. This had to be achieved through the Bill of Rights. Hence, in 1923, the ANC adopted the first Bill of Rights for South Africa. Ironically, this document incorporated the vision of equality as espoused by the colonialist Cecil John Rhodes under the slogan ‘Equality of Rights for Every Civilised Man South of the Zambezi’
The adoption of the 1923 Bill of Rights was a profound moment.
Some five years earlier, under the guidance of one of its most able members, Richard Msimang, the ANC had adopted its own constitution. As testament to his commitment to constitutional government by the late 1930s Msimang would be described as a ‘a real constitutionalist’. The constitution of the ANC was a model for a future South Africa. It borrowed the Westminster style of government, comprising the executive and a parliament, which included a senate – drawn from chiefs and traditional leaders.
The ideas of a constitution, the Bill of Rights and equality remained part of the folklore of the ANC for much of its early 20th century thinking. Aggressive Afrikaner nationalism became the order of the day from the 1920’s, as the British government adopted a policy of appeasement towards the Afrikaners, following the adoption of the Balfour Declaration in 1917. This meant the hegemony of White views as the Afrikaners sought to impose their language,
1 The betrayal has taken may forms: from blaming the Constitution for being “un-African”, giving too many rights to criminal suspects at the expense of law enforcement, constraining the ability of the elected government and making it difficult for the government to transform land and property relations in society.
2 In terms of the preamble, one of the aims of the Constitution is to “establish a society based on democratic values, social justice and fundamental human rights.”
culture and promote their economic position to place themselves on par with their English counterparts. Africans were not forgotten as such, but they were not treated as autonomous political actors but as subjects of political control and economic exploitation.
This period also saw the consolidation of capitalism driven by global mining interests, creating a class system in which the workers were African and mining bosses and the managerial class were White. But there was also an emerging Black professional strata of teachers, doctors, lawyers, journalists and businessmen. The dream that inspired the founding of the ANC lived on, even as the ANC organisationally faltered to near extinction during the disastrous presidency of Seme between 1930 to 1937, as noted by Bongani Ngqulunga in TheManWhoFoundedtheANC.3 The Second World War of 1939, taking place primarily in Europe gave a fresh, although deceptive impetus for the possibility of African freedom. The Atlantic Charter of 1941 drawn between the British and the Americans as a vision of the post-world war European society gave a temporary hope to Africans across the world.
The main idea of the Atlantic Charter was self-determination. Sir Winston Churchill, British prime minister, one of the main proponents of the Atlantic Charter, was keen to extend the Charter’s reach to all European societies which were liberated from Nazi rule. Here, in South Africa one of the most thoughtful men of the time, Dr Alfred B Xuma sought to theorise how the principles of the Atlantic Charter could apply to the situation of the oppressed African people of South Africa. Xuma’s vision led to the preparation of the Africans’ Claims document, in which a statement of the Bill of Rights for Africans were contained. Although much more expansive than any document that had ever been produced by the ANC before, the African Claims continued a tradition of commitment to constitutional government, the Bill of Rights and the principle of equality which were foundational to the ANC in 1912.
3 Bongani Ngqulunga The Man Who Founded the ANC: A Biography of Pixley ka Isaka Seme (Penguin, 2017).
The Africans Claims document produced in 1943 was a vision for a future South Africa. Voting would be extended to all adults, regardless of race. There would be a right to vote and the be elected to Parliament, Provincial Councils and other representative institutions for all. The Courts would dispense equal justice to all. There would be freedom of movement and residence. Restrictive laws such as the Natives Land Act would be scrapped. There would be the right of freedom of the press. The right to the sanctity and inviolability of the home would be guaranteed to every family. Everyone could own, buy, hire lease and occupy land without any restrictions. There would be a right to engage in any occupation, trade or profession without discrimination. Employment in the Public Service would be open to all. Every child would have the right to ‘free and compulsory education’. Every child would be entitled to admission to technical schools, universities and other institutions of higher learning. There would also be equal pay for equal work and equal opportunity. Unfair policies and practices in employment would be abolished.
Yet there was a counter-hegemonic force. In 1948 the National Party was elected into power. DF Malan was explicit in articulating the idea of apartheid, as the foundational policy of the state. Tonight, however, is not the night to speak about the National Party. At the December 1949 conference, the ANC adopt a programme to confront the white’s only government head on. This was an outcome of the internal agitation by the newly established ANC Youth League, which had become impatient with telegrams, deputations and delegations. In fact in that conference, Dr James Moroka, with the support of the Youth League, roundly defeated Dr Alfred Bitini Xuma, probably the best president the ANC ever had. The programme of action, promised something more direct: “the desire to achieve national freedom.” By that they meant “the attainment of political independence.” This would mean the end of “segregation, apartheid, trusteeship, or white leadership”. The demand was for “direct representation in all the governing bodies of the country – national, provincial and local”. All racially segregated institutions were to be abolished
Neither the 1943 African Claims nor the 1949 Programme of Action have been as popular as the Freedom Charter of 1955. Yet the Charter’s spirit lies in the Africans Claims. The most important declaration of the Freedom Charter is that “South Africa belongs to all who live in it, Black and White, and that no government can justly claim authority unless it is based on the will of all the people”. This was the proposal of the African Bill of Rights, flowing from the 1923 Bill of Rights, itself a founding idea of the ANC. The Freedom Charter has weathered many political storms. The idea of the Freedom Charter was first mooted at the 1953 conference of the ANC held in Queenstown by Professor ZK Matthews, who was a lecturer and principal of the University College of Fort Hare. By the end of that conference a formal resolution was passed to create a Congress of the People “to draw up, inter alia, a Freedom Charter of Constitution embodying a vision of the future South Africa as we in Congress see it”. Professor Matthews did not attend the Congress of the People of June 1955 because the students at Fort Hare were on strike at the time. He was one of the accused at the Treason Trial of 1956, becoming an articulate spokesperson and presenting a strong defence of the Freedom Charter, where he denied that the Charter is a communist document 4 For Matthews, the Charter was an extension of the Africans Claims. Its role was to refine the Africans Claims and to explain the conditions of government in a free, united and democratic South Africa.
The Freedom Charter repeated many of the statements of rights contained in the Africans Claims. Unlike the Africans Claims which placed emphasis on individual liberties, the Charter’s prime occupation was the economic sphere, proclaiming that the “national wealth of our country, the heritage of all south Africans shall be restored to the people” The mineral wealth, beneath the soil, the banks and monopoly industry “shall be transferred to the ownership of the people as a whole”. Industry and trade
4 By 1953 already, Matthews would state: “Redistribution of land is not a new principle. It appears in African's Claims. It goes even further back - right to the Land Act of 1913. The distribution of land which was then made was regarded as unfair and has been so regarded throughout.”
would be controlled to assist the well-being of the people. The land would be “redivided amongst those who work it”. There would be work and security. Men and women of all races would “receive equal pay for equal work”. The Charter promised houses, security and comfort and to use “unused housing space” for homeless people. It would provide free medical care and hospitalisation to all people “with special care for mothers and young children”. Slums would be demolished and new suburbs with transport, roads, lighting, playing fields, creches and social centres built. Orphans, the aged, the disabled and the sick would be cared for by the State.
A combination of the social and economic aims of the Charter and the individual liberties of the Africans Claims would form the bedrock of the ANC’s late 20th century liberation rhetoric. By the early 1990’s the collapse of the Whites only regime was inevitable. But what would replace it was still contentious. For its part, the ANC returned to its roots and rekindled the spirit of the constitution, the Bill of Rights, universal franchise, a government based on the will of the people and a commitment to social and economic justice. These ideas would be the epicentre of a new constitutional vision.
More still had to be done.
The political power of the majority would be constrained by the power of the law. A new idea of constitutional supremacy entered the lexicon of the ANC. This was not hard to embrace even as communist dogma had some influence in some of the policies of the time. Experiences of unrestrained, despotic White power under apartheid were still fresh in the imagination. Although the judges were unelected, they were seen as an essential check on the power of elected government
I can ask the first of the questions which I intend to ask in this lecture. One of the most important ideas in the Constitution is equality. In simple terms, the Constitution intends to end inequality. Inequality, in turn manifests in different forms, including race, gender, economic, social and cultural. Racism and
inequality are inextricably bound. In 2018, the World Bank noted that South Africa is the most unequal society in the world, with 76 per cent of the population, living in poverty. Thirty percent of the population is chronically poor. An overwhelming number of those classified as non-poor face the risk of slipping into the chronically poor category.
Race, gender and income disparity explain the depth of South Africa’s inequality. Africans are at the highest risk of being poor. Children, large families, and people living in rural areas are especially vulnerable to remaining impoverished for lengthy periods. Poverty is also gendered: the incidence of poverty is higher for African women. Most municipalities in the twenty poorest local municipalities are in the Eastern Cape, Limpopo and KwaZulu-Natal. Of these, the ten poorest municipalities are in the former homelands, thus highlighting the enduring legacy of apartheid.
We have become accustomed to the notion that education will end poverty. This was the idea behind universalising access to education, which has meant that an incredibly large number of black children have access to both secondary and university education. The hope is that education will take them out of poverty. However, the World Bank shows that while education can contribute to poverty reduction, asset distribution is a stronger indicator of who is poor and who is not.
“For the poor, the financial assets represent 36 percent of total assets, while among the rich, financial assets represent 75 percent.” Furthermore, “ownership of financial assets features prominently among the factors that influence wealth inequality.” What this means is that we do not need education instead of redistribution. To make a decisive break with the trappings of the past, we need both.
The future for the poor is also bleak. That is because wealth and poverty transfers across generations: at least a third of all children born to very poor parents will likely remain poor, while children of rich parents will likely become rich themselves. So wealth calcifies at the top, and does not automatically trickle
down. Since generally whites are at the top and Africans at the bottom of the economic ladder, calcification means the continuation of white wealth and black poverty, unless there is a fundamental reorganisation of the economic structures which changes the paradigm in favour of poor black South Africans.
Not only do we face a crisis of inequality, recent data also shows a regression, from the achievements of the first decade of democracy. Only in November 2023, the journalist, Estelle Ellis, of the Daily Maverick, published a story which showed that between August 2022 and September 2023, there were 1,722 cases of malnutrition in children in the Eastern Cape. Of these, 101 died, as did another 13 who were diagnosed with moderate to severe acute malnutrition. There were also thousands more who presented with symptoms of malnutrition If the data from Daily Maverick is to be perceived as anecdotal, it is also confirmed by the South African Human Rights Commission, which reported in 2022 that at least 25% of children born in the Eastern Cape are stunted. The problem of lack access to food is slow violence. It is also structural because we live in a country of plenty. In a country of massive food wastage. It is violent because we can end malnutrition. But we have children dying of hunger and starvation Unlike the malnourished children of the Eastern Cape, many of us have a lot. A lot more. This is why it is structural violence.
Yes, this is not the full story. Sampie Terreblanche argued that one of the most remarkable developments in the first years of a democratic South Africa has been the enrichment of the top 20 per cent of African households and the simultaneous impoverishment of the bottom 40 per cent. While the income of the top 20 per cent of African households (about 6 million people) increased by more than 60 per cent, that of the bottom 40 per cent (about 18 million people) declined by almost 60 per cent. In certain quarters there is some criticism about the “black elite”. Terreblanche, however, considers this “a healthy phenomenon”, without which a new South Africa would not have been possible. But this development underscores a broader issue – that the development of the black elite has coincided with the development of a black underclass. Current discourses on inequality tend to mask the truth about the
superclass/underclass dynamic that is South Africa’s reality. While the evidence of a causal connection between these two phenomena is unclear, they can both be seen as by-products of societal transformation. The upward mobility of some black people is explained by the shift in political power from white minority rule to a representative government, which opened up the possibilities of social and economic advancement where they previously did not exist. The explanation for the deterioration in the living standards of the black underclass, however, presents certain complexities. It can be explained by apartheid racism, governmental and institutional collapse, a stagnant economy unable to produce sustainable employment opportunities and the indifference of the black elite towards the plight of the poor. These factors combined have entrenched the poverty of the black underclass.
The larger point, however, remains. We are in a crisis of inequality. We have a Constitution which promotes equality, but a society which has produced inequality. We have a pro poor Constitution, producing anti-poor outcomes. I do not know why this is so But it is the most important question for constitutionalists. I think the problem lies in part in a restrictive interpretation of the Constitution as regulating public affairs and social relations, but never economic power. It is as if the economy operates outside of the framework of the Constitution. The last major policy intervention in the sphere of economic equality was the black economic empowerment legislation in 2003. But let us face it, black economic empowerment has not addressed inequality. In fact, despite the claim in its preamble, that the act is intended to address economic inequality, the structure of the act simply cannot resolve the crisis of inequality
My point is that if we accept that the Constitution has a particular conception of society, being egalitarianism, then we must also accept the link between that society and the determinant economic structure. Therefore, what we are yet to contend with is the economic vision of the Constitution. An equal society cannot be founded on economic injustice. That is simply a contradiction in terms. There are many things that can be done to resolve the crisis of economic injustice. It is beyond the scope of this lecture to itemise
them. My intention is to make the obvious point that the Constitution is a manifesto for economic justice. The crisis of inequality is a crisis of constitutionalism. But it is only constitutionalism that can resolve inequality, not cheap, empty, populist slogans.
Constitutionalism faces another malcontent: judicial supremacy and a representative parliament On the 14th February 1995, Nelson Mandela inaugurated the first Constitutional Court. In his speech, he said that the survival of democracy in South Africa depends on the Constitutional Court. In saying so, he was not conceding democratic power to an unelected branch of government. Instead, he was giving due recognition to the role of the judicial branch in holding the two other branches to the spirit and letter of constitutionalism.
Yet in recent times, Mandela’s wish for the role of the judiciary in the new South Africa has been called into question. More forcefully than ever before, the call for a return to parliamentary supremacy is made – sometimes they refer to it as “parliamentary sovereignty” as if these two terms mean the same thing. We have been here before. The very idea that parliament is supreme is an imperial idea. It was introduced into this country, when the British were the imperialist power of the Cape and Natal in the 19th century. The Nationalists also embraced and applied this doctrine, notoriously during the case of the 1950s known as HarrisvMinisteroftheInterior . That case involved the Separate Representation of Voters Act of 1951, which was passed to give effect to apartheid by the removal of coloureds from the common voter’s roll. But it was contended that this law was in contravention of the requirement of twothirds majority of the members of both houses of parliament in terms of section 152 of the founding law of the union of South Africa, passed in 1909. The government lost the case, with the Appellate Division finding that section 152 of the union act was an entrenched clause – it had the status of a constitution. But the government simply passed another law, the High Court of Parliament Act. Its aim was to make Parliament the ultimate court of appeal in constitutional matters and enabled Parliament to set aside by simple majority
any court judgment that invalidated an act of parliament. By a pen stroke, the Separate Representation of Voters Act was re-introduced.
The Appellate Division struck down the Act for the second time. Now, it held that the High Court of Parliament was a court only in name. In substance, it was Parliament, dressed in judicial robes.You remove the robes, the iron fist of politics emerges.The Nationalists were not yet finished.The 1953 elections were held under the Separate Representation Act. Malan told the public that he wouldn’t obey the courts. Only in 1955 did the Nationalists take their final step to overrule the courts. First they reconstituted the Senate, as the second chamber of Parliament, to ensure that they obtain the majority which they needed to disenfranchise coloureds. Secondly, they passed the Appellate Division Quorum Act. What this act did was to change the composition of the court from five judges, to eleven, by adding six. No doubt the six had been carefully selected to avoid any surprises. By the time the case came back to Court as CollinsvMinisterofInterior, there was only one dissenter, Oliver Schreiner. All ten voted to seal the fate of coloureds
This is what parliamentary sovereignty looks like.
Of course we seem to learn nothing from history. We are committed to repeated the errors of our ancestors. So if history teaches us nothing, perhaps some contemporary experiences should. How about the idea that Parliament is a better vector of public opinion. I agree that it should be, but I am less assured that in fact it does. Manin has studied the evolution of what we mean by democracy in order to address the fallacy, that seems immanent in the argument forparliamentary supremacy. Starting from Athens, where direct democracy was the norm, he has considered that in fact what happened in the 18th century, was viewed as a rejection of democracy in favour of representative government. Yet there is something enigmatic in the idea of democracy which enables it to capture a range of divergent perspectives, sometimes in tension with each other, and often in conflict. Nevertheless, Manin writes, what we have in the modern political world of the parliamentary system is a form of republicanism, which itself was an elite revolt against
democracy. The point here is that the contrast between “the people” on the one hand, and the courts on the other, is an illusory one. In practice, Parliament often stands against the people, even though it purports to act in their name. It is the courts who have often reminded parliamentarians that law making is not a function of a select few, but a function of the multitudes.
And the party system has not fared better either. Rather than dismantle the elitism, the political party system has entrenched it. When the constitution was adopted, it was hoped that the party system would produce an accountable, transparent, and responsive government. The electoral system was designed to favour political parties. Experiences now, some thirty years ago, suggests that there was no justification to entrust political parties exclusively with holding political power in the first place No reason to silence the voices of Athens.
This is what the Constitutional Court attempted to do in the case of the NewNationMovementwhen it ruled that the monopoly of electoral power by political parties is not consistent with the type of democracy which is entrenched in the Constitution. In other words, the Constitution’s conception of political power is wider, more diffuse and more representative than the party system allows. Of course the Constitutional Court has no law-making power. Inevitably the decision had to be taken by the same political parties, who perhaps predictably acted in their own interest. They squandered the chance to expand the scope of participation in our democratic system. They narrowed down the possibility of new voices. They squeezed out alternative perspectives to re-imagine the democratic system, to take us beyond the stale unimaginative politics of the first thirty years. It is not as if there were no comparable examples to learn from. A full constituency model has been recommended by Dr Van Zyl Slabbert, but it is clearly not serving the political elites. It was entirely predictable that, as with the May election that the outcome would be an opaque election system and the manipulation of the party lists by crafty party bosses. Things are not going to improve. It seems that what is required to meet the demands of the New Nation Movement case:
a full recast of the electoral system to entrench the voices of the people. A constituency model, alongside a party list system carries the best prospect towards this goal. The struggle for the democratisation of parliament should not be taken for granted. It continues.
Transformation has also been touted as a reason for the demand for parliamentary supremacy. The argument is that the judiciary has constrained transformation, and that parliament will likely achieve transformation quicker. It is so that one of the functions of the judiciary is to put brakes on the misuse of power. Sometimes misuses of power take place in the name of the greater good. Take for instance the destruction of the rule of law in Zimbabwe in the name of land reform. In fact, it is precisely in the area of land and property transformation that critics argue the Constitution and the judiciary have been anti-transformative. There is some cachet to the argument. Only six years ago, the national assembly adopted a motion to investigate possible constitutional changes to section 25 of the Constitution, to enable a faster pace to land reform and empower the state to expropriate land without compensation. While that process ended inconclusively, it still remains the case that critics say that section 25 is a constraint to transformation. Hence they say, they want a twothirds majority to “liberate” us from a western imposed, liberal constitution, which entrenches property rights.
Constitutionalists, like me have tended to be impatient with the argument, as an attack on the Constitution itself. We should take the arguments seriously. It is possible that what they are saying resonates in society. After all, it has become difficult to explain to ordinary South Africans why, if we have a good constitution, it is unable to deliver land to us. The text of section 25 itself cannot be squared up with a restrictive construct which entrenches property rights. It text simply does not do so. In fact, during the multi-party negotiations, both at CODESA and at the Constitutional Assembly, the question whether or not South Africa should have a property clause at all was debated. And specifically, whether land should be included in property. There was a view that if a property clause, of whatever formulation, is included in the
Constitution, its effect would be to protect white property privileges inherited from the past. Ultimately, the agreement was to include a property clause. But it was not the same property clause which was advocated for by the National Party and the Democratic Party, whose arguments included the absolute and unqualified right to property. Right at the outset, section 25(1) protects everyone from deprivation of property, except through a law of general application and says that no law may permit arbitrary deprivation. This clause has been referred to a “negative protection” of private property. It has been said that this inevitably privileges those with property at the expense of the property-less. I think this is true. But if history illuminates interpretation, the intention in part was to protect the many black people who were victims of forced removals, under the Natives Land Act, the Group Areas Act and arbitrary state action under apartheid.
If we return to section 25, what is apparent is that its purpose is not to entrench private property, but to transform it. This appears from most of its substantive provisions, by guaranteeing the right to restitution to victims of forced removals from 19th June 1913, empowering the state to expropriate private property including land in the public interest and for public purposes, and mandating the state to ensure security of tenure and access to land on an equitable basis. Read holistically, the function of section 25 of the Constitution is to transform property relations. Perhaps in 1994 all property acquired under apartheid and colonialism should have been forfeited to the state, and perhaps the truth and reconciliation commission should have focussed on land dispossession as a gross violation of human rights, and perhaps 1913 should not have been chosen as a cut off point in the case of restituted land. Many things could have been done differently. But the transition was a messy time and the country, an even messier place. We are now better in hindsight.
What we can see now, after thirty years is that the 1994 constitutional moment opened the possibility of real and meaningful reforms. In land, we missed them. And here it is not the law, but ourselves we should be looking for answers. Recent suggestions about giving the land to the custody of
traditional leaders, or placing it under state control simply prove the poverty of ideas that has permeated our political system. These ideas are presented as if they are African. As if in an African system, traditional leaders “own” the land. However, an illuminating judgment of the Kwazulu Natal Provincial Division brought by the Council for the Advancement of the South African Constitution, has put paid to the lie of king as owner of the land. Judge Mjabuliseni Madondo could not be more emphatic in his outline of Zulu customary law. In terms of Zulu customary law, he explained “each family head has the right to be allotted a family home site, arable land and a right to graze his livestock on pasture lands.” When this land is allotted, “to an individual”, there is no purchase price or rental. Once allotted, the right to hold the land “is sacrosanct in that it is inviolable and passes from generation to generation (inheritable). It becomes the property of the individual’s family.” What that means is that no king, or traditional leader can interfere with the rights over the land “without the involvement and consent of such individual or his or her family members.
The owner of residential or arable land acquires an exclusive right to its use.”To argue then, that our traditional system entrust ownership of the land to traditional leaders is to distort true customary law It is to return to a discredited, colonial version of customary law. When the Constitution recognises customary law, it does not intend to resuscitate colonial and apartheid versions of it, which increased the power of chiefs and placed them above the people. Instead it intends to empower the people so that they can exercise their own self-determination, sometimes against the chiefs.
Forgive me. I am approaching the end. In Chapter One of the Communist Manifesto Friedrich Engels and Karl Marx write that “All that is solid melts into air, all that is holy is profaned, and man is at last compelled to face with sober senses, his real conditions of life, and his relations with his kind.” In 1994 we had Nelson Mandela to take the leadership to move the country from the crisis of apartheid, to chart a new path for the future. To do this, Mandela did not need to know the future. And he did not need to know whether he would succeed or not. He was also not free of doubt Just like his decision on 16th December 1961 to form uMkhonto Wesizwe. Mandela is now, no more. We are compelled to quote Engels and Marx to “face, with sober senses our real conditions of life, and our relations with our kind.”
For constitutionalism to survive, the Constitution itself must not only be a popular document, but it should be a living one too. But it is unable to be, because of the widening gap between the ideal world which it describes, and the expectations it promises on the one hand and the lived reality of many people. At first, there was optimism about the ability of the Constitution to deliver on its potential. Then there was disappointment and despair at the level of corruption that was eating away the fabric of the constitutional system and the inability of the legal order to protect itself; unable to fight back; unable to protect the vulnerable. But I fear that now that the initial disappointment and despair have been replaced by cynicism – the idea that it is everyone for himself. These days many people shrug their shoulders or roll their eyes when they hear of another story of corruption. They also view voting as a charade; a performance; a spectacle. Nothing will change, they reason. This is why many have long abandoned the ritual of voting.
Like them, I’m afraid I also have no words of inspiration for you. I have no words of appeal to the cynical, the disappointed to return to the tent of constitutionalism. Constitutionalism has had its trials, it has had its tribulations. At first, it tried to live up to its promise. But in the long run, it has not been able to deliver on its economic promises. It has been abused by some. But I am a constitutionalist nevertheless. Despite its imperfections, its vulnerabilities and its apparent impotence in the face of raw power, I am yet to find a better system.
In these days where the promise of constitutionalism stands betrayed, it is easy to ask if constitutionalism is the problem. Yet if we take a longer, wider historical trajectory we can see that the preamble to our constitution was written in blood. Perhaps there is another way of maintaining faith in the idea and the ideal of the Constitution. On 10 August 1836, Dr John Philip, a missionary of the Cape reported to the London Missionary Society that extensive districts of the Eastern Cape once occupied by a large, happy pastoral race – the Khoikhoi – were left without people, except the occasional white intruder, holding farms of 10 000 acres, enjoying the “grim tranquillity” of empty land. He continued:
“If a traveller who had visited South Africa, 25 years ago, were to take his stand on the banks of the Sundays river, and ask what had become of the Natives whom he saw there in his former visit; if he would to take his stand again on the Fish river and thus extend his views to Caffraria, he might ask the same question; and were he to take his stand upon the snow mountain, behind Graaff-Reinet, (he would have before him a country containing 40 000 square miles) and ask where were the various tribes that he saw there 25 years ago, no man could tell him where they were” . 5
John Phillip did not have the language of genocide to describe what he saw. But it had all the hallmarks of it. Wiping out an entire people. Perhaps keeping faith in the constitutional system is about a reminder of this forgotten genocide of the Khoikhoi and the San people; of their land that was confiscated
5 Dr Phillip’s Empire, p 89.
by violence; an affirmation of their cattle stolen by European invaders. In this sense at least the Constitution is the living spirit of the children of the San and the Khoikhoi whose little skulls were smashed by the European invaders against the unforgiving rocks of the mountains of the Cape.
When all is said and done as the Constitution embodies multiple, painful pasts. These are the “injustices of the past” to which the Constitution pays homage. Its founders knew of these injustices first hand – yet their views were to confront injustice with justice. By recalling the African origins of constitutionalism, we can make sense of its promise. The Constitution can, and perhaps once again, play its redemptive role – it can become our book of redemption. It can be a gift from our ancestors. Our heritage. It can help us navigate the treacherous terrain of our present, uncertain times. It can help us contend with the despair and the cynicism.
You see, we created the Constitution. It belongs to us. It is one of the things that genuinely belong to us – the people of South Africa It is ours Having made it, now we must live it.
Thank you.