The struggle for transformative constitutionalism continues

May 1st, 2023

By Haroon Aziz

The Department of Justice and Constitutional Development (DOJCD) held the National Conference on the Constitution: Reflections and the Road Ahead on 22 – 24 March 2023 in Johannesburg. It aimed to advance transformative constitutionalism, the rule of law, economic transformation, and respect for human rights and freedom.

Its foci were on the –

  • transformation and building of an independent and resilient judiciary;
  • transformation and growing the economy as a constitutional imperative;
  • progress on land reform, restitution, and distribution;
  • governance and electoral reform; and
  • effectiveness of constitutional and independent statutory bodies in strengthening constitutional democracy.

It invited the widest possible segments of society to participate in-person or online. Its inclusiveness showed that law and justice matter to all citizens.

President Cyril Ramaphosa in his opening address referred to the ‘transformational promise’ of the prescriptive and purposeful constitution and its historical context.

The promise interweaves –

  • social and economic justices;
  • societal and economic transformation;
  • termination of human suffering and injustice;
  • poverty alleviation;
  • land restitution and agrarian reform;
  • delivery of socio-economic services;
  • healing of psychological wounds;
  • enforcement of popular will;
  • law and morality, ethical leadership;
  • building of national unity through diversity; and
  • the promotion of languages, cultures, and religions.

As the Constitution is more than the supreme law it simultaneously rejects the past and envisions a just future. Its promise places historical responsibility on all citizens and their respective leaderships to participate in the transition from the traumatic past into the future through the eye of the painful present.

Because the Constitution is the supreme law, we ask what constitutes the core of judicial transformation from Apartheid injustice to constitutional justice?

The Judge President of the Gauteng Divisions of the High Court, Judge Dunstan Mlambo attempted to answer this question. On 24 March 2022, he delivered the 16th Annual Human Rights Law Lecture at the Stellenbosch University Law Faculty. The topic was ‘Transformative Social Change and the Role of the Judge in Post-Apartheid South Africa’.

Against the background of factionalised political attacks on the judiciary he highlighted policy deficiencies. ‘One searches in vain for policies and other transformative problems that have been stymied by the courts. All that the courts have done is to point to deficiencies in policies that have come before and referred these back for improvement in line with constitutional dictates,’ he said.

He pointed out that the failings of the transformative agenda are located in the constitutional governance framework. He said, ‘currently, there are themes that seek to suggest that our Constitution has been a failure in that it has not resulted in better living conditions for the poor masses; there are themes that suggest that judges and courts have become a “Juristocracy” that impedes the socioeconomic development of the poor masses; there are yet other themes that suggest that courts and judges, unelected as they are, have become too powerful and must be reined in and that South Africa could do better under a parliamentary supremacy framework.’

He pointed out that predominantly party-political members, MPs, and their like propagate such themes and ‘openly decry the power of judges and courts.’

The state is the duty-bearer for the translation of transformation into ‘social and economic parity and development’. As such it ‘must adopt rights-informed legislation and social justice policies that follow a distributional pattern of focusing on the poor and ensure the availability of financial and human resources for the implementation of such policies.’

The solution to developmental problems requires a return to constitutional principles and deliverables. He said that the Constitution is human rights-based and future-focused with provision of developmental tools to advance the constitutional project. He warned that political hostility towards the courts and judges would delegitimise the courts and ‘sound the death knell to our constitutional transformative project as a nation.’

He said that it was not the judiciary’s fault that South Africa’s constitutional transformative agenda has failed.

Like politicians, judges, and magistrates, too, need to have their performance measured, held accountable, and judged whether they should continue to hold judicial office. The days of Apartheid when they appeared to embody the cult of angelic icons, aloof from society are over. But for this to happen the judiciary, magistracy, and legal community, must create a new legal culture and mind-set, inductively, from within the profession, with civil society participation. A grey area of legal justice is the application of the law of inferential evidence, which involves human subjectivity. Ethical mode of thinking and acting requires the dropping of perceptual bias that favours the dominant faction in government. It is an area where judges and magistrates can assert the true independence of the judicial mind, fearlessly. It is where the cultivation of a new legal culture, immersed in the wider culture of democracy can be cultivated and public trust in the justice system can be optimised. Public participation is the necessary condition for the ongoing development of transformative constitutionalism.

Small firms of attorneys are naturally doing community work on the ground, which is spread far and wide thinly. While retaining their decentralised nature such work should be institutionalised as corporate social investment (CSI) to broaden the new legal culture and its democratic values. The DOJCD should consider accelerating this CSI in motion incrementally and nationally as a follow-through on its National Conference – beyond a once-of event as a process of societal change. Change owned by the community cannot be defeated.

Judge President Mlambo referred to Karl Klare’s article titled ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Rights 146 that invites a new imagination, self-reflection, and the need to revise judicial methodology and judicial mind-set to promote the culture of democracy. Otherwise, the traditional legal methods with its inbred formalism of legal culture would slow down social and legal transformation. This requires reworking the common law and the legal infrastructure to which the constitution is alive and prevents the rigging of the ‘constitutional superstructure onto a common and customary law base inherited from the past and indelibly stained by Apartheid’ (DM Davis and K Klare ‘Transformative constitutionalism and the common and customary law’ (2010) 26 South African Journal on Human Rights 403). It becomes the legal duty of judges, magistrates, attorneys, and advocates to promote constitutional values through which human dignity, equality, and freedom inhere as democratic values.

Judge President Mlambo refers to s 39(2) of the Constitution and points out that the courts are obliged to promote the spirit and objects of the Bill of Rights and to s 8(3)(a) that oblige judges to ‘develop the common law and fill gaps in the legislation to give effect to the rights enshrined in our Constitution.’

He says, ‘judges under a transformative constitutionalism must not shy away from developing the common law, given that they are both authorised and bound by a constitutional injunction to fulfil the constitutional vision.’ He also refers to s 172 of the Constitution and said: ‘That section mandates and authorises judges to strike down any law or conduct that does not comply with the Constitution.’ This is necessary to bring about a socially and economically transformed society. Judges are obliged ‘to develop new methods for approaching adjudication and new criteria for resolving common law questions.’

There was an economic context to the adoption of the Constitution. The African National Congress (ANC) had come into power based on its Reconstruction and Development Programme (RDP), which was its mandate from its poverty-stricken constituency in 1994. In government it developed the White Paper on Reconstruction and Development in 1994. It reneged on this mandate and, as the all-powerful executive it unilaterally adopted the International Monetary Fund (IMF) and World Bank (WB) structural adjustment programme known as Growth, Employment and Redistribution (GEAR) in 1996. The RSA Constitution was also adopted in 1996.

This reneging is the source of the alienation that set in between the ANC and its constituency. While GEAR aimed theoretically to create macroeconomic stability it created social instability by arbitrarily cutting down on social spending.

Within a decade GEAR proved to be an economic and social failure. The ANC in government, again, without a mandate from its poverty-stricken constituency adopted a new economic policy called Accelerated and Shared Growth Initiative for South Africa (AsgiSA) in 2005. Within five years AsgiSA proved a failure. The ANC prematurely replaced President Thabo Mbeki with President Jacob Zuma as the State President. Zuma replaced AsgiSA with his New Growth Path (NGP) in 2010. Within three years NGP proved a failure. The ANC Mangaung Conference adopted a new economic policy known as National Development Plan (NDP) in 2012. The ANC in government introduced NDP in 2013.

All four plans – GEAR, AsgiSA, NGP, NDP – failed because they were implemented according to IMF and WB prescription that compelled the ANC government to cut down on social spending as arbitrary percentages of the gross domestic product. This is the source of government failure to deliver on its constitutional mandate as enshrined in s 27 of the Bill of Rights. The government is pre-armed with a legal defence in terms of s 36(1) on the ‘limitation of rights’. This means that the poor must provide for their social needs by themselves. Otherwise, the government provides minimally for education, health, housing, social grants, security, electricity, water, and sanitation. Its failure to deliver the socio-economic benefits of the ‘national democratic revolution’ (NDR) has resulted in rapid decline in its electoral support. Also, it had failed to mobilise expertise to manage a modern industrialised nation-state with the capacity for socio-economic delivery. NDR degenerated from a ‘revolution’ into a weak reform that favoured those who could afford human rights to provide for themselves.

These plans failed to attract foreign direct investment for productive investment in the real economy with sustainable long-term job creation. They attracted portfolio investment for short-term profits on the under-taxed JSE casino.

Unbearable levels of Eskom blackouts since 2007 have beset the country with unnecessary problems because the ANC came into power without an energy policy. In power it hired different consultants to develop a few policies, all of which could not be implemented because they were based on false assumptions. The blackouts, aside from damaging the economy violate human rights because they cause deaths in hospitals, labour pains of women giving birth are compounded, patients on oxygen support suffocate, lessons at public schools are stopped, police stations fail to provide safety and security, and justice is delayed at law courts.

The governance framework shows systemic failures or deficiencies in government policies.

The national government at the pinnacle of power must take basic and ultimate responsibility for failure in delivering socio-economic benefits to the people as part of its constitutional mandate. Thereafter, pro-rata shares of irresponsibility may be cascaded to provincial and local governments, state owned enterprises, and judiciary. National government means Parliament, National Council of Provinces, Executive, and all coercive organs of state power.

It should stop wasting time and money in finding loopholes in the constitution to rationalise its multiple failures.

It must educate its servants on liberation values as a precondition for their employment as its ‘public representatives’ who should also be trained in the design of new policies, which include social justice as the central axis of transition from the past to the future. They should be trained, firstly, in preventing threats to democracy and political and social stability. This means that they should not themselves pose such threats through dereliction of constitutional duty. The policies should prioritise the interests of women, youth, workers, peasants, unemployed, and the environment.

Civil society is highly aware that the constitution by itself cannot fail. It fails only if an apathetic electorate allows its lazy ‘public representatives’ to make it fail.

While politicians speak of a ‘developmental state’ they have failed to define it and set out its terms of reference, for which they should be held accountable and as an objective measure against which their performance should be evaluated and as a determinant whether they should continue to hold political office. The political failure to define obstructs the definition of transformative constitutionalism. This makes it difficult to meet the objective standard of interpretive fidelity.

Government should realise that ‘foresight prevents blindness’.

Haroon Aziz is a retired physicist, author, and researcher and is part of the leadership collective of the Apartheid Victims’ Families Group.

This article was first published in De Rebus in 2023 (May) DR 10.