The three-pointed compass that will guide the second decade of democracy in South Africa was on display at the opening of the new Constitutional Court complex last Sunday.
At the apex, the Constitutional Court; the second point, President Thabo Mbeki, who opened the buildings ; and at the third, marchers from the Anti-Privatisation Forum (APF) who wanted to demonstrate their belief that many South Africans were being denied the socio-economic rights guaranteed to them in the Constitution.
By definition, Constitutional Court judgements deal with difficult and important legal issues; a whole new jurisprudence is painstakingly constructed.
The Bill of Rights is a highly sophisticated mechanism for mediating between competing interests. While there are plenty of South Africans who do not agree with everything in the Constitution, there are very few who would contest the legitimacy of the document itself.
The same with the court, I think. Enter Mbeki (stage right). Last Sunday he paid careful tribute to the court and the confidence that the community has in the legal system as a whole. But he also laid down a delicate challenge. The confidence was not a given, and it should not be taken for granted. Quoting an Australian judge, he said: ”The judiciary must keep a weather eye on community values to retain the relevance of their decisions to that community.”
Could Mbeki have had in mind two recent decisions of the court that have surprised the government and added significantly to the burden it carries? The first involved the granting of voting rights to those prisoners serving sentences without the option of a fine. As Albie Sachs put it in an earlier case when insisting that the right to vote is vested in all citizens: ”The right to vote is a badge of dignity and personhood.”
This is the starting point. But all rights can be limited according to a proportionality test enunciated in a previous judgement that is a key guiding principle for matters that come before the court and which is relevant to Mbeki’s political test of ”community values”.
The limitation is ”one of degree to be assessed in the concrete legislative and social setting of the measure, paying due regard to the means which are realistically available in our country at this stage, but without losing sight of the ultimate values to be protected”.
The phrase ”social setting” is the court’s equivalent reference to Mbeki’s ”community values”.
The majority of the court — nine judges — reached a decision in favour of the prisoners. They concluded that that the government had not made out the factual case for limiting the right based on cost and resources.
While it would be clumsy to describe them as ”the conservative wing of the court”, Justices Madala and Ngcobo, not for the first time, took a different approach to the majority in their dissenting judgements. Madala applied the approach of the Canadian Supreme Court when it said: ”Temporarily removing the vote from serious criminal offenders while they are incarcerated is both symbolic and concrete in effect. Returning it on being released from prison is the same.”
Unlike, I suspect, many liberal-left lawyers, I would agree with Madala and Ngcobo on this one, as I think would the majority of South African society. If you commit a serious crime and go to prison, you lose the privileges of freedom, including the right to vote. This for me is the ”common-sense” approach.
Equally, with the other recent judgement that declared that welfare benefits should be available for permanent residents as well as citizens, it makes common sense: if you pay tax and participate lawfully in a society, you should also accrue the right to social welfare protection. On this issue the court was basically united.
But, to the third point in the triangle, the APF. The face and fundamental character of politics in South Africa is changing rapidly. When Mbeki referred to ”community values”, I can say with great confidence that the APF was not what he had in mind. Its mobilisation of people who have had water and other basic services cut off because of privatisation is now widely detested in government and mainstream ANC circles; they attract the term ”ultra left” more readily than any other political entity.
When the APF and other social movements start extending their social activism, like the Treatment Action Campaign (TAC), to asserting their rights in the Constitutional Court, then we will see the full tension of this triangle tighten like the proverbial violin string.
The TAC case in 2002 was a ”vanguard” legal challenge as well as a vivid illustration. Although the decision against the government was politically charged, given the opposition of the president to the provision of anti-retroviral drugs — and it had huge implications for government policy — it was, I think, fairly easy for the court to identify and ”connect” with ”community values” or the ”social setting”; people were dying in an epidemic and they needed urgent treatment to help keep them alive.
This is the third dimension to the Constitutional Court’s existence: the humanity that lies behind each of its judgements. It may not care for the messenger, but behind the APF there are also human beings who are suffering. Challenging government policy on the ownership, control and delivery of services — matters fundamental to its whole macroeconomic strategy — is likely over the next 10 years to place the court repeatedly between a hitherto pragmatic, cautious government on the one hand, and an increasingly angry, organised and powerful poor on the other. Thus will the Old Fort continue to be a site of struggle.