'Constitution does not solve problems in themselves'

The Constitution was not a “miracle law” and should not be used to solve problems that we cannot solve ourselves, Professor Steven Friedman said on Thursday.

“We should not look to the Constitution to solve all sorts of problems it is not meant to solve,” Friedman said at a constitutional symposium in Johannesburg.

“We should recognise that the Constitution does not solve problems in themselves ... rather it gives us a platform to solve problems,” he said.

The symposium hosted by the Black Management Forum (BMF) was intended to open a discussion on whether it was time to review the country’s Constitution.

BMF president Jimmy Manyi said the organisation was of the view that there were a few issues in the Constitution that “we need to talk about”.

Among these issues was the property clause which guaranteed property rights to South Africans.

‘Sting in the tail’
Manyi said the “sting in the tail” in this clause was that the Constitution said “fair value” had to be paid in appropriating land.

This was a problem because “fair value” had become “market value”, resulting in government having to pay enormous amounts of money when appropriating land.

Another problem was the transformation clause.

“It appears the Constitution does not support the transformation agenda in this country,” he said.

He referred to court cases where previously disadvantaged individuals lost their court bids when trying to obtain positions for tenders.

A third problem was the freedom of expression enshrined in the Constitution.

Manyi asked whether the South African media had taken this right too far.

“Why is it that the media can have a field day railroading the office of the president without impunity?”

‘The answer does not lie in change’
Two further issues he felt needed reviewing were Section 27 of the Constitution, which pronounced on procurement and, lastly, culture.

However, during the panel discussion Friedman said: “The answer does not lie in change, it lies in using constitutional rights properly.”

Another panel member, advocate Thabane Masuku, said often it was not a matter of what the Constitution contained but rather how it was interpreted.

“I think the biggest problem is how we get institutions to give effect to the Constitution ...
to interpret it in a way that it has an impact on the socioeconomic conditions of the people,” he said.

In order for the Constitution to work as intended, the country required a judiciary that had been transformed, he said.

Earlier, President Jacob Zuma told the symposium that the ANC was not a threat to the country’s Constitution.

He said the ruling party was a key player in its creation and would therefore defend it to the end. - Sapa

Natasha Marrian

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