YOUR QUESTIONS ANSWERED: THE SOUTH AFRICAN CONSTITUTION

Published in 1996, the South African Constitution is the bedrock of South Africa’s democracy, as it sets the tone of who we are, and how we want our society to function. As a legal document, its content can often be misinterpreted. Constitutional expert, Professor Cathi Albertyn, answers some questions on the Constitution.

HOW HAS THE CONSTITUTION HELPED TO SHAPE SOUTH AFRICA'S POLITICAL LANDSCAPE?

Constitutions typically set out the institutions, rules and principles that organise power and decision-making within a state and identify the rights and duties that govern the relationship between the state and its people. The Constitution of the Republic of South Africa establishes a constitutional democracy where a representative parliament and an independent judiciary are important features of our political landscape.

A commitment to a universal franchise, regular elections and a multiparty democracy, based on proportional representation, means that Parliament is representative of multiple parties.

Critically, an independent judiciary is authorised to interpret and enforce the Constitution which means that courts play a central role in holding the exercise of public power to account. People can go to court to vindicate their rights – from the right to vote, to rights to non-discrimination, socioeconomic rights to housing, healthcare, water, social assistance and education. Courts can hold Parliament, the Executive and public officials to account, which means that the courts play a significant role in the fight against impunity and corruption. Various political battles have spilled over into the courts, including faction-fighting within the ANC as well as highly publicised litigation around President Zuma and those associated with state capture. Sometimes referred as lawfare, this means that the courts are used multiple times to delay accountability in what is often called the ‘Stalingrad strategy’.

HOW DOES THE CONSTITUTION ENSURE ACCOUNTABILITY AND TRANSPARENCY IN GOVERNMENT?

The establishment of an accountable, responsive and open government is a cornerstone of our democracy. Parliament, the courts and Chapter Nine Institutions all play a role in ensuring accountability and transparency.

Apart from its central role in law-making, Parliament is tasked with scrutinising and overseeing government action. This allows Parliament and its Committees to call the President, Ministers and government officials to account for implementing laws, service delivery, public expenditure, and allegations of maladministration. Parliament must also approve the annual budget. There has been substantial criticism of Parliament’s weak oversight role in the past, often arising from party loyalty. Parliament’s reluctance to hold the Executive to account was highlighted when the Constitutional Court found that it failed to ensure that President Zuma complied with remedial action ordered by the Public Protector in respect of irregular expenditure at his Nkandla private residence.

The supremacy of the Constitution means that all law and conduct that is inconsistent with the Constitution and the Bill of Rights is invalid. Where Parliament, the Executive and public officials violate the Constitution, citizens may go to court to enforce the Constitution.

HOW DOES THE CONSTITUTION ADDRESS ISSUES OF EDUCATIONAL INEQUALITY AND PROMOTE EQUAL OPPORTUNITIES FOR ALL STUDENTS?

The Constitution guarantees a right to basic education, including adult education. This is given content in legislation, particularly by the South African Schools Act. This right has grounded a number of cases to address ongoing educational inequalities, ranging from discrimination in access, to universal norms and standards for schooling and the provision of desks, teachers and textbooks. While all of these cases have been successful, the implementation of court orders tends to be subject to significant delays. In addition, matters relating to the quality of education and successful educational outcomes are probably beyond the purview of courts.

The Constitution also guarantees the right to further education which the state is bound to make ‘progressively available and accessible’. At the core of equality in the higher education system is funding. While universal funding is not guaranteed in the Constitution, it does require the progressive roll-out of such funding and probably prevents its unreasonable and irrational roll-back. For example, a recent retraction of National Student Financial Aid Scheme funding from students doing a postgraduate LLB at Wits was overturned on review, against the broad backdrop of the Constitutional educational right.

HOW DOES THE CONSTITUTION HANDLE THE CONCEPT OF LAND EXPROPRIATION WITHOUT COMPENSATION, AND WHAT IMPLICATIONS DOES IT HAVE FOR LAND OWNERSHIP AND REDISTRIBUTION?

The Constitution addresses the land question in Section 25 by setting out the broad framework for restitution and redistribution but it leaves the details of these processes to be defined in policy and law. On the question of expropriation, Section 25 provides that expropriation, for a public purpose or public interest, must take place under a law of general application and is subject to compensation. The amount of compensation must be ‘just and equitable’ and be approved or decided by a court, which must balance the public interest and the interests of those affected. Whether this compensation may amount to ‘nil’ has been the subject of heated debate. One side argues for certainty in the constitutional text (thus advocating for a constitutional amendment). These are split between those who state that there is no duty to compensate (expropriation without compensation) and those who would keep the duty but specify that this might amount to ‘nil’. The other side argues that ‘nil’ compensation is permitted by the Constitution, but that the Expropriation Act must be revised to guide government and the courts to enable this under specified circumstances.

The latter view aligns with the general idea that the Constitution provides a broad normative and enabling framework for social and economic transformation, that is flexible and designed to endure. It is in the details of policies, laws and programmes – and their implementation and enforcement – that real transformation becomes possible. Here, the question is whether the Expropriation Reform Bill, currently before the President for signature into law, is up to the task.

CONSTITUTION CONTRIBUTE TO TACKLING UNEMPLOYMENT AND INEQUALITY AND FOSTERING INCLUSIVE ECONOMIC GROWTH IN THE COUNTRY? IS THAT PART OF ITS ROLE?

The Constitution establishes a vision of an egalitarian society based on social justice, human dignity, and the achievement of equality and freedom. This can be seen to envisage a redistributive social democracy, and constitutional rights and principles can be interpreted to enable, defend and advance quite radically redistributive measures. However, the Constitution does not specify a particular economic policy, the choice of which falls to the government of the day.

Among the principles and rights that foster an inclusive economy are the constitutional commitment to achieving equality and the Section 9 equality rights that permit positive measures. These enable, for example, black economic empowerment. In addition, non-discrimination and affirmative action under Section 9, and the right to fair labour practices, trade unions, and collective bargaining in Section 23 help foster an inclusive labour market. The detail, of course, falls to policy and legislation.

Overall, the rights and principles of the Constitution can be drawn on in multiple ways to advocate for greater economic transformation, to defend economic transformation and redistribution where it does takes place and, more rarely, to call out government in court when it fails to assist those in need. C iCathi Albertyn is a Professor in the Wits School of Law She is known for her work in Constitutional Law and has served as a commissioner on the Commission for Gender Equality and the South African Law Reform Commission. MORE ON THIS STORY:

For more answers on questions about the Constitution, visit www.wits.ac.za/curiosity/ or follow Wits on LinkedIn or Facebook.

Three decades into democracy and a generation of ‘born free’ voters registered to make their mark at the polls in 2024, what is the soundtrack, if any, that underscores this election year?

LEANNE RENCKEN

When considering how music serves a democratic agenda, the struggle songs of the liberation movement immediately come to mind. Historically South Africa has been a country that protests with song, toyi-toying its way through revolution. Leaders call for change, and the nation responds in harmonious verse.

Professor Emeritus of Social Anthropology at Wits, David Coplan, says, “We all know the most iconic struggle songs. Many of them were hymns but were sung strictly for political purposes during the struggle – songs like Senzenina [What Have We Done?] and Hamilton Masiza’s Vukani Mawethu [Wake Up My People].”

The Progress Of Protest

While these hymns and other struggle songs have historical significance and are still often invoked with a sense of nostalgia, they’re not the go-to anthems of today. Neither is kwaito, the youth-led post-1994 pop/rap genre that spoke to both liberation and disillusionment and peaked in the early 2010s.

Can kwaito’s successors, such as popular music genre amapiano, or even gqom, fill the protest-music gap? Probably not, but perhaps that’s not the point. Coplan theorises that “the young generation is looking for other avenues to keep the country going for them. Maybe the most political thing about music is that it represents social mobility.” Given South African singer-songwriter, Tyla Seethal’s recent Grammy win for her global hit, Water, and her deal with US label Epic Records and her large social media following, he may be right.

New Concepts

Lebogang Ngwatle is a Master's student in the Department of Cultural Policy and Management in the Wits School of Arts and has a slightly different take. Ngwatle believes that “the messaging and the revolution in the contemporary sound we hear is extremely spiritual. There are the drums, the chanting, references to idioms of old, questions about self-identity, and land – not directly, but it’s clear that land is connected to spirituality.”

While amapiano and gqom are mainstream, says Ngwatle, there are other concept bands like iPhupho L’Ka Biko that are rooted in Black Consciousness and Africanism. Founded by Wits Music alumnus, Nhlanhla Ngqaqu, in 2015, the experimental sound of iPhupho L’Ka Biko is rooted in jazz and draws on themes such as spirituality, love, ritual, culture, their envisaged future, and displacement. They gained prominence as proponents of the #FeesMustFall movement and have recently released their first album, Azania

Chantal Willie-Petersen, renowned jazz musician, lecturer and PhD candidate in W its Music adds, “A lot of South African artists that I am aware of and that I am drawn to are those that provoke the idea of what democracy should look like in our country. Artists like Benjamin Jephta [in Wits Music] who has recently released an album called, Born Coloured, Not Born-Free, and others who are still talking around the ideas of racism, poverty, inequality, war, gender-based violence, the way we do life, nation building, etc. There are so many inconsistencies, inequalities, and instabilities that music addresses, and I feel that music plays a great role in establishing what our Constitution asks for theoretically, but what it is still very much lacking practically.”

Arts Economics

Can the powerful messaging behind music like this only be validated by its engagement with a rapt audience, intent on driving its mission forward, and equally important, shouldn’t it be able to support artists financially?

Ngwatle, whose research interrogates the role community art centres played in creating a cultural and financial support system for artists, believes that with the closure of many of these centres the South African government needs to step in with respect to both audience and artist development.

“In South Africa the biggest concern that underpins all policy is social cohesion,” she says. “What better way to achieve social cohesion than through the arts? My research interest asks how we can communicate about art this way and measure its contribution to social cohesion? What indicators would we use?”

Singing From The Same Song Sheet

Willie-Peterson believes that activists will always find an audience if they address the needs of society. She also believes that participation in music is important for the artist because it is transactional, but it’s vital for everyone because it’s inherently restorative: “Audiences will find a space where music is there to contribute towards cultural enhancement and towards the seasons in our lives where we need to be carried by something that is of a divine nature, that speaks to the healing of the body, the mind and the reconciliation of nations.” C