Constitutional Court (Photo: Gallo Images / Beeld / Felix Dlangamandla) 
“I say there is more than ever the need for transformative jurisprudence… Transformative justice must be founded in the courts’ understanding of the actual conditions people live in,” said Gauteng Judge President Dunstan Mlambo on Monday.
He was delivering the keynote address at an international conference on “Law, Policy and Social Justice: Taking Economic Equality Seriously”, hosted by Thuli Madonsela, former Public Protector and now Law Trust Chair in Social Justice at Stellenbosch University.
Mlambo said, “We should also find time to shape the litigation that will assist the courts to shape socioeconomic rights through the Constitutional Court.”
Discussions on the role of economic equality in peace, stability and the rule of law were a precursor to Tuesday’s social justice summit, which this year focuses on economic equality, the July public violence, SA’s Covid-19 response and building for sustainable growth, social justice and peace.
Highlighting the entrenched consequences of apartheid that remain evident 27 years into democracy, Mlambo said that to address economic inequalities, it was critical to address socioeconomic rights, and that courts could provide access to people to resolve their issues, rather than engaging in violent public protests.
socioeconomic rights are justiciable and, with assistance, much like civil society and others bringing matters to court, the courts could draft progressive judgments.
However, sometimes litigation is not enough, as was shown after the 2000 Grootboom Constitutional Court judgment entrenching housing rights, and the 2002 Treatment Action Campaign legal victory to roll out Nevirapine to prevent transmission of HIV/Aids from mothers to their babies.
“These cases gave us hope that socioeconomic justice would be accelerated, but it has disappointed,” said Mlambo, citing today’s lack of access to clean water, pit latrines at schools and Eskom’s rolling power outages which, while the rich could afford generators, left the poor in the dark.
Hence, Mlambo’s call for society to work together to ensure the Constitution remains a living document.
“For economic growth to translate into social parity… the state must adopt rights and social justice policies that adopt a redistributive pattern.”
Social justice needed to be rethought, as it could not exist without economic redistribution, according to Centre for Applied Legal Studies director, Prof Tshepo Madlingozi.
He emphasised that courts had handed down key judgements — not only in the Grootboom and TAC Constitutional Court cases, but also rulings on norms and standards in schools, anti-eviction jurisprudence and social security litigation.
But none had contributed to economic redistribution, nor had they “helped dismantle economic apartheid”.
Central to that were limitations of state capacity, according to Madlingozi, who recounted how, despite a court win and two contempt of court orders, 5,000 people in 10 Limpopo villages still remained without access to clean water.
“Sometimes it’s not about corruption... they are incompetent. Municipalities have collapsed. We can’t talk about social justice where institutions have collapsed.”
Corruption also limits social justice because it misappropriates money. “You can’t have social justice if institutions continue to be crippled by cadre deployment… continue to be crippled by State Capture.”
But while the law played an important role, it could still do more, such as in the equality courts, for example, which are underused. Also, empowering communities was important for people’s agency, as a four-year project on mining houses’ social labour plans had shown. In this regard, local communities in Burgersfort, Mpumalanga, and Sekhukhune, Limpopo, were starting to benefit.
It was critical to have partnerships with the state, to hold it accountable and help build accountability.
Part of the reason social justice remains hamstrung is the continued economic hegemony.
While Mlambo urged the state to adopt rights and social justice policies for a “redistributive pattern”, Madlingozi said it was vital the Budget was not only pro-poor, but also passed constitutional muster.
“We need to be honest about the failure to talk about the lack of commitment to redistribution, restitution and reparation,” said Madlingozi. “The idea that you can achieve social justice without white people losing something, is ridiculous.”
And in that, he found support both on the Bench and in research.
“Our inequality is dire and stark” — in terms of the human development index, South Africa is 115th out of 180 countries. It is also racially defined, with white South Africans at 0.91, or the same as Sweden, and black South Africans at 0.58, according to Human Science Research Council (HSRC) research director Dr Sharlene Swartz.
Yet white South Africans believed their quality of life was lower than it actually is, according to an HSCR social attitudes survey.
Reflecting social distrust and diminishing confidence in both government and democracy, 37% of South Africans are angry about income inequality and 60% demand restitution. Economic satisfaction has dropped from a high of 47% in 2007 to 27% nationally — with KwaZulu-Natal scoring the lowest at 10% this year.
The research found that while one in two black South Africans believe whites must pay restitution tax, only one in 10 white South Africans feel the same.
Swartz said reasons included failure to deliver on policies and a shortage of capacity that led to, for example, money being returned unspent to the National Treasury.
“We often have very good policies, but not enough capacity,” said Swartz, adding that alongside youth programmes, technology solutions and land reform, “a wealth tax and BIG (basic income grant) are urgent and important”.
Judge Dennis Davis, judge president of the Competitions Appeal Court, did not mince his words.
With unemployment at 40% and the overwhelming majority of wealth concentrated in the top 10% of the population, the constitutional commitment to transform society has not happened.
“We will not be able to have a democratic society… if we continue with those figures. They are just unsustainable. It’s a disgrace — 27 years into democracy, we are still there.”
In the preamble, the Constitution states that it was adopted as the supreme law “to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights…”
The Constitution could assist in the political and economic struggle for a seriously transformed society, but that also meant the need to rupture the status quo.
“… If the guardians of the Constitution are corrupted (including the police), and a parliamentary system which slavishly supports the executive without demure, you will not have a democratically accountable society.”
A rethink of economic policy was needed so it promotes constitutional rights, rather than reproducing inequality. But a rethink is also needed on private power — including contract, property and companies law — because private power also reproduces inequality.
“Social justice and the Constitution either work together or we have neither,” said Davis, adding later: “I simply don’t want to live in a society where people eke out a living and we are proud of this R350 (Covid-19 social relief of distress) grant.
“Politicians most probably spend this on an afternoon tea.” DM