In his last state-of-the-nation address at the opening of Parliament, President Nelson Mandela understandably spoke of the achievements of the first democratically elected government. Within this context, it is worthwhile examining the record of our new Constitution, particularly the Bill of Rights, over the same period. After all, it was the rights contained in the Constitution for which people fought and died over much of this country’s history.
The centrepiece of the new scheme is the Constitutional Court. It has rid the country of the death penalty, homophobic laws and aspects of our criminal justice system that eroded fundamental rights. For whatever reason, few cases have been heard that have had the potential to affect the lives of those millions who remain disadvantaged. The much-proclaimed range of socio-economic rights have never been employed in litigation. The radical provision which makes private legal relationships subject to the provisions of the Constitution has been all but forgotten. Most cases involve crooks, corporations and other wealthy litigants. Save for the gay and lesbian lobby, who have been well organised in ensuring that homophobia is eradicated from our law, the constituencies whose legitimate interests have not been promoted by the government have hardly been before the court.
Hence the equality clause which should fuel a transformative jurisprudence has been used mainly in a defensive role in local-government cases. We await a case where the clause is used to promote the claims of those who have suffered as a result of failure of government policy.
The reasons for these developments are many. It appears that political organisation is a prerequisite for the disadvantaged to use a strategy of rights litigation. Unlike the 1980s, when human rights and labour lawyers showed great legal imagination, there has been little innovation in the new era.
But the court itself must take some blame. From the outset it made legal access difficult and complex. That it had such a small workload only compounded the disappointment in this approach. Often its judgments are so opaque that not even the experts can locate the ratio of the case. The Cook’s tour approach to legal scholarship, whereby some judgments contain lengthy descriptions of numerous legal systems, compounds the problem, as does the habit of some judges to pen concurring judgments, where there is no necessity or obvious benefit. The distance between the court and the public is great. But that is less the court’s fault than that of other agencies.
Between the Ministry of Justice and the Human Rights Commission there should have been a major campaign at generating human rights awareness. Remember the post office Constitutions distributed in 1996, the television and radio programmes during the negotiations for the final Constitution? Since then we have seen and heard little. Small wonder that a recent study reported that 66% of its representative sample of South Africans were unable to explain even the most basic features of the Constitution.
More disturbing has been the ministry’s failure to present a civil rights Act to Parliament. This legislation could ensure that racism and sexism in the private sector would be curbed. Take the following example. Some months ago the SABC, in an uncharacteristic display of relevance, investigated the practice of an owner of a caravan park who excluded black people from entry into the park. A civil rights Act could put a stop to such nonsense. Almost five years into its term of office and the ministry has yet to present a civil rights Bill to Parliament. Apparently a team is now working on producing a Green Paper, but informed sources suggest a final coherent Bill is a long way off.
Forget about the attention given to the Minister of Justice Dullah Omar’s less dull friends. The minister should be judged for the failure of his ministry to produce arguably the most important piece of legislation in promoting the transformative values contained in the Constitution. After all, the Ministry of Labour produced the Labour Relations Act and the Ministry of Trade and Industry the Competition Act.
And what has happened to the administrative review Act the Constitution promises? Like the civil rights Act, probably nothing will emerge during the first five years of the minister’s term of office.
In short, transformation of the law is conflated with the identity of appointments to the bench which, while extremely important, is of far less significance than the creation of the appropriate legal context within which change can occur. For these reasons, the record of the Constitution only merits a pass.