/ 4 November 2022

How to take South Africa forward: A constitutional argument

Second chance: The constitutional court (above). Take the country forward in the same way the Constitution was forged. Photo: Madelene Cronjé

Almost three decades after the promulgation of a Constitution with a Bill of Rights, which includes justiciable socioeconomic rights, we continue to grapple with social justice challenges that still cut deep. 

When South Africans came together in the 1990s to carve out a new democratic constitutional dispensation for ourselves after decades of struggle for justice, circumstances were not ideal, but there was a clear resolve to establish a constitutional dispensation where human rights shall be protected in a Bill of Rights. 

Considering our apartheid past of gross human rights violations, we have come a long way. But we have in so many ways only scratched the surface. Attaining the equal society and nation-building we had envisioned in the Constitution is still a far cry.

The shocking capture of our state revealed in the Zondo commission’s state capture report has left the country stunned. Not even the Constitution could protect us from the destruction of state capture.

But it is important that South Africa not be cowed into paralysis. All three arms of the state may have to regroup, determining how to take the country forward, doing so with the same political will, determination, sincerity, openness and benevolence that went into the creation of South Africa’s constitutional dispensation. This time, we shall have to include and interrogate lessons learned with a view to guard against the recurrence of state capture. 

In his report, Chief Justice Raymond Zondo makes a number of observations and recommendations that point to the need for structural changes that parliament may have to adopt to enhance its oversight capacity and capabilities. These changes should enable effective oversight and ethical leadership, which will ensure the executive places the interests of the people at the centre of their constitutional mandate, role and function. 

As we move forward, placing people at the centre of state interests generally and state services, in particular, must be the primary concern not only for parliament and the government, but for the state as a whole, including the judiciary. How the enhancement of the capacity and capabilities of the state to effectively centralise the interest of people as envisioned in the Constitution must be the concern of the nation and therefore requires a national effort. 

Going back to the constitution-making process, it would be recalled that notwithstanding the conflicting positions we held on the struggle for liberation, the various sectors of society discussed critical sector-related issues.

The commitment to carve out a society based on the foundation of a new democratic constitution that defined the ethical direction of the future constitutional dispensation was firm. Remember the boldness of the historic adoption of the idea of judicial review, which would check and balance parliamentary legislative and executive or government power. 

As chief justice Ismail Mahomed often emphasised, the power of judicial review is a power given to the judiciary by parliament on behalf of the people of South Africa, who parliament represents. That power, he once reminded the judicial training seminar, must be exercised without fear, favour and prejudice. 

Remember too the audacity that later went into the adoption in the Constitution of socioeconomic rights as justiciable rights which can be enforced in a court of law, rather than as policy directives that serve only as government guidelines. 

Our Constitution provides that all three arms of the state must respect, protect, promote, and fulfil the rights in the Bill of Rights. What it means is that the obligation to achieve the substantive realisation of not only the socioeconomic rights but all rights in the Bill of Rights is that of all three arms of the state — the legislature, the executive or government and the judiciary.

Although the three arms must fulfil their obligations independently, the constitutional checks and balances do create a type of synergy among them ensuring that in a particular case, the left arm will be aware of what the right arm is doing. Importantly, therefore the realisation of the rights in the Bill of Rights — in particular, the socioeconomic rights — is not a constitutional duty placed on the judiciary alone. 

Parliament has the first duty to be informed of the needs of the nation and pass legislation that should ensure those needs are met. The executive must implement the laws of parliament, creating regulations, policies and or strategic programmes and projects to ensure the substantive execution of parliamentary legislation. In that regard, the government is answerable to parliament, where the latter, on behalf of the nation as a whole and not only those who voted for them, has a constitutional duty to hold the government accountable.

Although the judiciary and the judges who serve are independent and must execute their role and function without fear, favour or prejudice, the judicial power is balanced out by the power of the president to appoint judges as head of the national executive, following a recommendation of the Judicial Services Commission (JSC) and after consultation with the chief justice. Further, judges are removed from office through a parliamentary impeachment process, also at the instance of recommendations by the JSC.

Performing the judicial interpretation function in accordance with the strict discipline of judicial independence and accountability to serve the course of justice, the court shall have no fear, no favour and no prejudice for none, declaring parliamentary legislation or government action unconstitutional if need be. And setting them aside. 

It is only when parliament and the executive fail in their constitutional obligations and complaints or disputes in that regard are brought before the courts by affected parties, that the judiciary may be called upon to intervene through its constitutional adjudicative mandate. 

When making their orders for parliament or government to take corrective action, accounting for the exercise of their respective authority, it is the duty of courts to refrain from overreach by encroaching on parliamentary or executive powers. 

When exercising the judicial adjudicative function, the inarticulate premise on which the personal position of the judge on the issues at hand is based becomes irrelevant and must be consciously avoided. There is no room for populism. 

Indeed, pertinent surrounding social justice issues and circumstances serve as context and, when relevant, must be taken into account. When the court’s decision is precedent-setting, it may result in positive changes for similar relevant social justice concerns in broader society. But any suggestion that courts have an obligation to change the social justice landscape for vulnerable communities outside of the judicial process is at least misleading.

The fact of the protection of rights in a Bill of Rights cannot by itself make the realisation of the rights in the Bill of Rights an everyday reality. It is their substantive and effective implementation by all three arms of the state as mandated in the Constitution which stands a good chance of doing so. But, unless all three arms exercise the necessary will and if they do, have the required capacity and capability to substantively and effectively narrow the gap between the rights in the Bill of Rights and people’s everyday reality, the realisation of the rights will continue to elude us and ring hollow.

In his final report on state capture and corruption, Zondo is of the view that parliament must work to avoid the recurrence of state capture. It is reported that parliament has already committed itself to do so. 

While law enforcement agencies and the courts continue to sift through the debris of state capture, salvaging whatever is redeemable to rebuild the state after the damage caused and complicated by the socioeconomic ravages of an unprecedented global pandemic, it may be important for the rest of society in the meantime, to regroup in a way similar to the constitution-making processes leading to the democratic dispensation, to determine how to take the nation forward. 

A few sectors of the state and society are already gathering to exchange ideas, and address how to revive the sectors and or curb the sectoral effect of state capture. The challenge is that discussions and plans are proceeding in silos and in that regard, the nation at large remains unaware and in the dark about developments. 

Equally critical would be to ensure discussions take place in an all-inclusive gathering of state and society, which is intergenerational and multi-sectoral. South Africa does not lack credible and capable institutions to bring us together and manage well-informed and skilfully researched discussions for effective solutions. The resolutions of the discussions could feed into the national effort to move the nation forward, with each arm of the state benefitting in a relevant part from such a national exchange. 

As we wonder what Ntate George Bizos would have thought of such a wild thought, we might want to start thinking about it. 

This is an edited version of a speech Yvonne Mokgoro gave when she accepted the George Bizos Human Rights Award 2022. Mokgoro is a social justice activist and former justice of the constitutional court.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.