State failed, not the Constitution

By the book: The Constitution provides the country with a legal foundation that protects a number of rights. (Madelene Cronjé, MG)

By the book: The Constitution provides the country with a legal foundation that protects a number of rights. (Madelene Cronjé, MG)

Twenty years ago, South Africa’s democratically elected Parliament passed the Republic of South Africa Constitution Act. It was widely heralded as the most progressive in the world. Roll on 20 years, and a range of voices proclaim exactly the opposite.

From the Progressive Professionals Forum to some elements in the Fallist movement, we hear that the Constitution is a reactionary document that prevents economic transformation and is the reason there has been little land restitution; thus it is seen as a new form of Eurocentric colonisation.

That the underlying arguments about economic transformation and the slow pace of land reform have validity is one issue; that the Constitution is to blame is an different question. The Constitution itself proclaimed that it was designed to lay the foundation for a society based upon social justice and the achievement of equality. Neither of these objectives has yet been achieved. Much of the economy remains in white hands and land reform and restitution have been conducted at a painfully slow pace. If our society is to be based upon social justice and equality, South Africa is a long way from the fulfilment of this aim.

But does it follow that the Constitution is to blame? Most cited in support for the constitutional critique is the property clause, section 25. Agreed, this section provides that no one may be deprived of property save by law of general application and that the law cannot sanction arbitrary deprivation. Accept, as one must, that not all democratic constitutions provide for a property clause. Canada, for example, does not have such a clause.

But read the balance of the section — that is, section 25(2) to (8). This carefully crafted clause does not mandate that compensation be market-related; it does provide clearly for the state to take reasonable measures to ensure equitable access to land. Further, it is clear that persons or groups deprived of land from 1913 onward have a right to restitution or “equitable redress”.

Hence, the land question was to be dealt with as part of the Constitution’s ambition for a society based on social justice. On the basis of comparative precedent, it is obviously possible to argue that we should not have included section 25 in the text. But nothing in the Constitution prevented the government from pursuing a focused or aggressive land policy after 1994.

It took more than 20 years to introduce a new expropriation Act that could assist the policy of redress. The Constitution is hardly to blame for this tardiness, or for incoherence of present policy. That the Constitution did not mandate market-related compensation is yet more evidence that, on the land question, it is political action, not the Constitution, that should be criticised.

The argument that ownership of the economy remains racially skewed because of the Constitution is even more difficult to understand. A Constitution dedicated to substantive equality, promotion of measures to redress the inequality of the past, deep protection of workers’ rights, as well as mandatory provisioning for a social wage, does not appear to stand in the way of significant change to the economy.

To the extent that there is any doubt, Parliament acted decisively in pursuit of this objective when it passed the 1998 Competition Act, which is manifestly compatible with the Constitution.

This Act empowers the Competition Commission to attack cartel activity and ensure that large firms do not abuse their market power to prevent the entry and growth of smaller firms in the relevant market. It empowers the commission to ensure that mergers do not affect the viability of small and medium-sized firms owned by “historically disadvantaged people”, meaning black South Africans.

To the broader argument that the Constitution is a new form of colonisation, there are several answers. Here are two.

First, unless one adopts a view that the language of the text admits of only one answer, which would preclude vernacular law from playing a decisive influence in the development of the law, this argument cannot get out of its populist stall.

There is a justifiable argument that this country’s extremely conservative legal culture and the resilience of traditions inherited from Britain have held off an Afrocentric approach. Again, that is not the fault of a legal text that does not lift itself unaided to practical implementation.

The second answer is more immediate. The rights in the Constitution were the subject of a very long fight in which many died. Rights to substantive equality, dignity, freedom, protest, information and a range of workers’ rights cannot simply be dismissed as some legal fig leaf. They are essential to a democratic society. To sweep them away on a wave of populist hubris is to lift the middle finger at more than 100 years of political struggle. 

Serjeant at the Bar

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