South Africa

SOCIAL JUSTICE

The courts can do a lot more to dismantle economic apartheid — but this needs everyone to get involved

Constitutional Court (Photo: Gallo Images / Beeld / Felix Dlangamandla)

Gauteng Judge President Dunstan Mlambo on Monday prevailed on civil society to bring to court matters that could allow the judiciary to make progressive rulings to impact on South Africa’s dire socio-economic inequality, as the state must adopt social justice policies with a redistributive aim.

“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

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  • The continued targeting of white people is simple racist social engineering. However justified the protagonists of this may feel in their views, it is naive in the extreme to think that taking from the rich to give to the poor will work.
    Consider too that those white people who moved into colonies over past few hundred years came with technology and knowledge and a culture of invention which equipped them to succeed wherever they went. Whist exploitation of the local populations occurred in an indefensible way, in itself this was not the fundamental reason they prospered. Take the US where there were very few indigenous people for example.
    Equality is a pipe dream. We are not born with equal ability, even in the same families.
    Capitalism is the only economic model that creates motivation for self help despite its many shortcomings.
    Whilst we disincentivise business leaders, we simply create an own goal and the rest of the world gets the jobs!

    • Oh good lord Miles. England and Europe got rich on the pillage of the third world (a book you should read). India and China were the world’s wealthiest nations until the colonists arrived. The East India Company literally ran the whole subcontinent as its private property, defended by the British army. Do you think South Africa was colonised for the beautiful scenery? or the gold and diamonds? The “very few” indigenous people of the US were subjected to genocide, including the distribution of small pox ridden blankets and military slaughter (Read Bury my Heart at Wounded Knee or listen to Buffy Sant Marie -My country tis of they people you’re dying) Texas was stolen from Mexico and the country got rich on slave labour and then prison chain gangs.(not free markets). South Africans were driven off the land by law and taxes, and 3 million forced removals took place under Apartheid. You don’t just draw a line under that and say we are all equal now and if you don’t succeed its your fault. Or claim that a free market exists. All the rich countries practiced protectionism and massive state intervention and subsidies, until they ruled the roost and suddenly it became anti democratic to do it. Trumps tax cuts were not free market. Billionaire tax evasion is not free market. In the 1960’s and 1970’s top marginal tax rates in the US were more than 80%. They seemed to do fine. We need a market economy. but lets not pretend it was free markets that made people, or countries rich.

      • You miss my point entirely. The sense is that apartheid was a necessary part of Europeans creating wealth. You cannot discount their centuries of development which was at the root of the ability to create intergenerational wealth.
        In no way am I trying to justify apartheid, it was an evil policy and created great harm for so many.
        Since time began humans have competed for resources which includes the Bantu coming down from up North to drive the San and the Khoi off their lands – or is that OK because it was black on black?
        We cannot change the past but we can harness our world class managers to create wealth and opportunity, Redistributive and other social engineering polices, however morally justifiable, have and will never work, infact they destroy hope.

  • I’m not sure how Judge Mlambo, or Judge Davis for that matter, think that social equity can be achieved through the courts. The courts haven’t even succeeded in trying to get government to do its job and now they think they’ll solve a national problem. I can understand Judge Mlambo making statements that are politically appealing but Judge Dennis Davis surprised me as he must understand by now how quickly capital can flee. If these judges had spent a little of of their time urging government to dump their failed policies and adopted policies that incentivised the private sector to invest in the economy then they wouldn’t have to talk about dividing up a shrinking economic pie.

  • This is fantastic. The judges are saying what neither politicians nor the private sector are will to say: that eradicating poverty and reducing inequality are fundamentally political choices that the courts should enforce (as per the constitution) if the politicians won’t. And the challenge to civil society to find the necessary levers is an important one, that should be taken up with enthusiasm. The time to believe that we will get some kind of voluntary ïnclsuive growth”, never defined, is past.

    • I do not share your enthusiasm. Do you know what else has never been clearly defined? All the root causes of inequality. Only the ones useful for political expediency are mentioned anywhere (including here).
      You cannot find a solution if you are only willing to acknowledge half the problem.

      • The political choice is to get government out of the way of talented, hard working people who have the ability to create wealth. Once that occurs, the tax base goes up, education can be addressed (get rid of SADTU) and large numbers of low wage jobs can be created as the first step onto the ladder of reducing poverty. Inequality is not the issue, lack of the ability or opportunity to work is the key issue which, if addressed properly, will enable more social ills to be addressed.
        You cannot legislate your way into wealth.

  • Kurt Vonnegut’s story “Harrison Bergeron” is maybe relevant. Everyone is equal and there is an official handicapper to enforce it

  • The courts are useless to change anything that is in control of the anc. How many court orders have been ignored by state/government institutions/ministers etc. and how many of those anc deployees are in jail for their crimes?