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The challenges are formidable, but we have the Constitu...

Maverick Citizen

CONSTITUTIONALISM ADDRESS

The challenges are formidable, but we have the Constitution and collective will to transform our society

We know the challenges that face us are formidable, yet we have the Constitution and still the collective will to transform our society. But real transformation cannot be a matter of lip service. It requires a commitment from all of us and fundamental change to the structure that continues to render us such a disparate and unequal society. (Photo: Leila Dougan)

For many, the Constitution has truly been the source and the foundation of a better society, a better life, a better future. For many others, however, the Constitution remains an illusion far on the horizon. Justice Jody Kollapen delivered the keynote address at the Section27 and Casac Conference on Constitutionalism on 28 February 2022.

Thank you for the invitation to deliver this talk at your conference. The topic is an important one and of great significance at this time in our country when the very idea of a Constitution and the principle of constitutionalism is taking centre stage in a lot of the public discourse that is unfolding. 

Former President Nelson Mandela described the coming into existence of the Constitution in the following terms: 

“The brief seconds when the majority of the Honourable Members quietly assented to the new basic law of the land have captured in a fleeting moment the centuries of history that the South African people have endured in search of a better future. And so it has come to pass today that SA undergoes her rebirth, cleansed of a horrible past, matured from a tentative beginning and reaching out to a future with confidence.” 

constitution society mandela
Nelson Mandela. (Photo: Mark Wilson / Getty Images)

While the ushering in of a new constitutional order that evidenced an unconditional rejection of our shameful past and a commitment to a fundamentally and qualitatively different future was always going to be historic, few of us imagined how dominant a place the Constitution would come to occupy in virtually all facets of our lives. 

From the overtly political to the intensely personal; in commerce, trade and industry; in sport and leisure; indeed, in the collective and individual consciousness; in the self-determination of individuals and collectives and in the daily struggles of our people, the Constitution has been a constant. 

Of course, its very nature and content and the scope of its impact continue to be the subject of ongoing contestation and will invariably be substantially shaped by the vantage point of the reviewer.

For many, the Constitution has truly been the source and the foundation of a better society, a better life, a better future — one characterised by respect for their worth and dignity and one that has enabled them to reach their potential, as the preamble to the Constitution so boldly proclaims. 

For many others, however, the Constitution remains an illusion far on the horizon. They impatiently wait to feel its presence and effect and to deliver on its promise of a better life for all. And the longer they wait, the more likely they are to believe it is more illusive than real. And yet, the very future of our country depends on how this constitutional pact is honoured for all South Africans. More on that later. 

And so, important as the coming of the Constitution was, there was life and activism before the Constitution — it was vibrant, robust, boisterous, brave and courageous. 

In the pre-1994 era, the institutions of state were not ours — they were created for a privileged minority, worked to advance minority interests and worked uncompromisingly against the interests of the majority. That was, after all, the perversion of apartheid. And so, the struggle for freedom took place outside of a formal and organised state institutional framework, but it was by no means a disorganised struggle — it was just organised differently and in a real sense organically. 

People at all levels of our society and in all sectors recognised that unity in purpose was key if we were to speak in one voice, advance one united struggle and work towards the idea of one South Africa that belonged to all of its people. And what a precarious and exciting time that was. 

Jody Kollapen: Life was difficult for us; for our parents, for our leaders and for our people. There were days when we were engulfed by despair and other times when hope soared within us. As Dickens famously wrote: “It was the best of times, it was the worst of times.” Photo supplied. 

I can recall UDF mass meetings in Laudium where I lived then and still continue to live. The Civic Centre would be packed to the rafters, you never knew if the Security Police would break up the meeting and arrest the organisers and anyone else they felt like arresting; the speeches were rousing and passionate; everyone was moved — even the cynical and those who believed that the crude might of the apartheid state was invincible.

And indeed, long after the meeting had ended, you had a sense of hope, even if objectively the power of the apartheid state was formidable. You instinctively knew and had faith that you were part of a greater movement that was unstoppable — a movement that was ethically beyond reproach. You knew your leaders and you trusted them implicitly and they, in turn, served selflessly. The vibrancy of the organisations of civil society took centre stage in those struggles; they guided, they strategised, they led with integrity and were worthy of being followed. Workers, teachers, lawyers, parents, religious communities, trade unions and many other interest groups formed a resilient common front and gloriously took millions along with them. 

And yet, life was difficult for us; for our parents, for our leaders and for our people. There were days when we were engulfed by despair and other times when hope soared within us. As Dickens famously wrote: “It was the best of times, it was the worst of times.” 

And so the people’s struggle endured and in 1994 it reached its zenith when we voted for a new government and welcomed an impressive new and comprehensive institutional framework that was firmly located in the new supreme law we had adopted — the Constitution. 

And so it raises the question — how does a people’s struggle, deeply rooted in the lived reality of the millions who drove it and owned it and gave it sustenance and legitimacy, relate to the new institutional framework of the Constitution that was meant to deliver on the expectations of that struggle, which may well have fallen short in some ways, but in other ways substantially delivered on the blueprint for a new democratic order? I wish to make a few observations in this regard. 

Firstly, we did not simply replace minority rule with majority rule, but instead with a system of constitutionalism — described in the following terms by William Galston, writing in the Journal of Democracy:

Constitutionalism, denotes a basic, enduring structure of formal institutional power, typically but not always codified in writing. This codified structure is ‘basic’ in that it provides the basis for the conduct of public life. And it is ‘enduring’ because it typically includes some mechanism that makes it harder to change the structure itself than to amend or reverse decisions made within it. In addition to organising power, constitutions also establish boundaries for the institutions that wield it.” 

In its submission to the Constitutional Assembly in 1995, the ANC said: 

“The supremacy of the Constitution should not be a system against the state but it should be a system for the democratic state, to guard against the state degenerating into anarchy, arbitrariness and illegality without a framework of rules. Such a state would undermine democracy and democratic practices.” 

Secondly, democratic decision-making or majority rule is recognised to the extent that it is not offensive to the precepts of the Constitution and, to that extent, constitutionalism recognises the necessary constraints that must apply to the exercise of state power. 

This is important, particularly in South Africa, where the claims of majorities may come into conflict with the Constitution. The fact that those claims are located in popular sovereignty do not render them any more legitimate if they conflict with the principles of the Constitution. This is not anti-democratic; rather, it is the proper recognition that if you wish to build a truly inclusive society in the bewildering diversity that is South Africa, then the dictates of the majority, or, as some have said, the tyranny of the majority, must have some counterweight. 

Those principles operate to protect all — today they may appear as a barrier to the assertion of some claim, but tomorrow the same group may invoke them to protect their interests. 

Thirdly, the formal structures of the Constitution and those that encourage public participation in its processes were never meant to replace the natural ability of people to come together around an issue; organise and mobilise and advance the public debate on that issue; and push for policy changes, law reform or whatever else was necessary to address the issue. 

While the structures of the Constitution are there to provide an enabling environment for this to happen, they are by no means dispositive of the manner in which people chose to organise themselves and engage with the formal institutions of state. 

The need to and the right to organise and the spontaneity that often accompanies it must not be straitjacketed into formal processes, even though they must be harnessed in the most effective way possible. We must be careful that we do not allow the grandeur of the constitutional order to have a chilling effect on the lifeblood of democracy — people engaging with each other and with their government in the manner they may consider most effective. 

Amartya Sen made reference to this on a visit to South Africa many years ago when, speaking at Rhodes University, he referred to what he called the two perspectives of democracy — the public ballot and the public reasoning perspective of democracy, is how he described them. 

The public ballot perspective dealt with the adequacy of the public ballot and the freedom to vote and the integrity of the ballot and its assessment. The second interpretation, which he referred to as the “public reason perspective”, sees democracy in terms of the opportunity of participatory reasoning and public decision-making. The democratic claim of a political order has to be judged by its commitment to protect as well as to respond to public reasoning. 

Voting and balloting are, in this perspective, just one part of the democratic process. There was a need, he said, for supporting and encouraging open and informed discussion and to work for the responsiveness of public decisions to that interactive process. 

This is what is also referred to as government by discussion and accords, in theory at least, with the provisions of our Constitution that speak to the participatory nature of the system of government that it introduces and the opportunities and rights of citizens to participate in policy making, law-making and other processes. 

Of course, one may then ask, what is the state of our democracy from a public ballot perspective as well as from a public reasoning perspective? Over the past 27 years or so, the integrity of the ballot has endured considerably well and free and fair elections have become a significant and regular feature of our democratic order. What must be of concern, however, is the declining number of citizens who use the ballot — the recent turnout in the municipal elections put the figure at well below 50%. 

In a society with so many challenges, one would have hoped there is a greater appetite for elections, but if the analysts are to be believed, it may represent a cynicism in the view that elections make a difference. It is something we should be concerned about. 

Equally, when one considers the public reasoning perspective of democracy, can we say that participatory reasoning and the ability to respond to such reasoning has become a feature of our democracy? I’m not sure. Despite a sophisticated system of government at the national, provincial and local level, including local ward committees, there is more we can do to ensure that the structures of participation result in meaningful and effective public reasoning. 

When that system works effectively, it deepens democracy, it enhances dialogue between government and citizens and it may avoid or limit the use of litigation as the ultimate resort in the assertion of a constitutional claim. 

Simply to illustrate the point, I offer the following example. The provision of textbooks as part of necessary teaching materials has always been a part of government policy. One must then ask why it was necessary for parents and an NGO, in a system of participatory democracy and with many tiers of government, to have to go to court to secure an order to compel government to provide textbooks? You would have thought that when the problem arose, a local elected councillor would become aware of the matter, raise it with the provincial education department and the matter would be resolved without the need to resort to litigation. That is, after all, what participatory democracy and being responsive to public reasoning would have achieved. 

And so, it must then become evident that, in the absence of what Sen describes as the public reasoning perspective of democracy, the Constitution will lack the enabling environment necessary for its proper fulfilment, and its ability to deliver on its promises will always be constrained. 

Twenty-eight years into democracy and at the subjective level, people articulate differently about the state of our nation, and these views range from the cautiously optimistic to the deeply pessimistic, and in a large measure it again relates to the vantage point of the observer. On the other hand, the objective facts can hardly be disputed, and if one has regard to them, they paint a sobering picture of the challenges that face us. 

The Diagnostic Report of the Planning Commission released some years ago list nine key challenges and they include that:

  • “[T]oo few South Africans work.
  • The quality of school education for most black people is sub-standard.
  • Poorly located and inadequate infrastructure limits social inclusion and growth. Spatial challenges continue to marginalise the poor.
  • The ailing public health system confronts a massive disease burden.
  • Public service performance is uneven.
  • Corruption undermines state legitimacy and service delivery.
  • South Africa remains a divided society.”

These are formidable, stubborn but not insurmountable challenges, and while most of them have as their resolution the adoption of proper policy and legislative frameworks on the part of government, there is much that can be done by individuals and the organisations of civil society. Of course, there are many who work tirelessly in this direction, and I commend you, but much, much more is required and awaits us.

If we are honest, as we must be, then we will readily admit that the South Africa of 2022 is far from the one we contemplated in 1994. Of course, we set the highest standards for ourselves, but we were surely entitled and justified in doing so, and while we have made considerable progress on some fronts, on many others we have hardly done as well as we should have and could have done. 

The Constitution was, however, never intended to be self-executing. Textually, it ranks as one of the best in the world, but for its provisions to transcend the paper it is inscribed on, and be converted into reality, requires people and institutions, all who share a common fidelity to the Constitution, to act in unison. 

Fidelity to the Constitution does not require an uncritical acceptance of the Constitution — we must be able to critique it and revisit its provisions if need be, but this process must be informed and underpinned by asking the right question: if it is not working, does the problem lie in its text or does it lie in our inability, for whatever reason, to give effect to its text? 

Of course, a constitution on its own can never be a barometer of the state of democracy. At best it represents a signalling, and an important one at that, of the intent of those who have adopted it. Ours was no different — it was a statement of intent (brave, far reaching and ambitious) but still, no more than a statement of intent. 

Let us be reminded of the caution of Prof Thomas Pogge when he says: 

“Human rights instruments have become a substitute for real progress. Great battles are won and glorious victories are won over rhetorical details that in the end make little difference in the lives of real people.” 

I have noted from the conference programme that you will spend some time talking about grassroots movements, the climate change movement and the women’s movement, and that is commendable because that is the essence of how we retain some measure of control of our lives and our destinies. 

It is through the agency of people who share common objectives that much more can be achieved, not just in terms of outcomes (important as they are), but in strengthening democracy and constitutionalism. 

You will all recall the judgment of the Constitutional Court in the Nevirapine case and, while at the time it was properly celebrated as an important jurisprudential marker carving out a clear delineation of the separation of powers principle, the greater victory was the work of the TAC in mobilising millions of South African around the issue — public education, advocacy and lobbying all put the issue firmly on the public agenda and it could simply not be ignored. And I suppose even if ultimately the victory was not won in the courts (it was), it had already been won in the social and political spaces that mattered and, more importantly, in the public consciousness. 

A word about the courts and litigation. The principle that the Constitution is supreme has, as its consequence, the provision in Section 172 that a court must, when deciding a constitutional matter, declare any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency. 

This is a remarkable, far-reaching but necessary provision and what it does is to vest with the courts the power to review and, if need be, set aside the conduct of the other arms of government when it is inconsistent with the Constitution. While it is a very debated provision, it has over the years ensured a fidelity to the Constitution and has also ensured that by and large we have been able to function within the key operating principle of constitutionalism — that power must be exercised within the constraints the Constitution imposes. 

And so the courts have played an important role in this era of constitutionalism, not just through Section 172, but in the interpretive role they invariably play in bringing the Constitution to life, in ensuring that it retains the characteristic of being a living document and in interpreting legislation in keeping with the purpose of the Constitution.

But we should be careful that we do not rely too much on litigation as a means to advance rights, and there are a number of reasons for this caution. Courts are, by their very nature, limited in what they are able to do; they are confined to the pleaded issues before them; their findings must be evidence-based; there is an evidentiary burden that any claimant must meet; litigation is costly and time-consuming and generally operates on the winner-takes-all principle; courts must and do act in deference to other arms of government in appropriate circumstances; and finally, it has been said that courts are inherently conservative, with some even arguing that traditional legal culture has constrained the transformative project. 

And so let me raise, from the many challenges that face us, just three. 

South Africa remains a divided society 

The spectre of the rainbow nation made us feel warm and good about our country and its people, but it was also a beautiful spectre on the horizon. Today we may have become more inclusive in how we have dealt with the demands of diversity, and it may have contributed to uniting us at some levels, but we still remain a divided society in many other respects. Race, poverty and inequality represent massive fault lines that militate against the idea of a society united in its diversity, and we have not done much to address that. 

While the answers, I must accept, are complex and sometimes deeply rooted in our psyche, I am not sure that we even speak about race except when some overt public expression of racism temporarily prompts us to do so, and even then the focus is on the incident rather than on the layered and structured form of racism that still runs deep. 

Did we never think that we needed an anti-racist movement just as we formed movements and campaigns to deal with so many other challenges we encountered? Were we seduced by the idea that we were, in fact, the rainbow nation? I may be wrong, but I’m not aware of an NGO that focuses substantially on anti- racism. Diversity work is important, but it is not anti-racism work.

That we have to debate Black Lives Matter says much about us. Of course all lives matter, but if South Africans do not understand or even attempt to understand the history and context within which the Black Lives Matter movement was born, then we will forever remain insensitive to what happened in our own country for so long. 

On the other hand, we have made considerable strides in becoming a more inclusive society. Through legislation and litigation, we have advanced the idea that difference is valued and recognised and that the idea of equality is not about ensuring that those who are like us should be entitled to the benefits and rights we have, but importantly that those who are different are entitled to the same protection of the law and the opportunity to be who they want to be. 

Landmark judgments dealing with the right of gays and lesbians, women, children, non-nationals, cultural and religious groups etc. have all advanced the idea of an inclusive society. A Rastafarian child going to school wearing dreadlocks, or a Jewish boy proudly donning his kippa, an Indian girl wearing a nose ring, a Malay woman wearing her headscarf together with her work uniform, or a Zulu worker proudly displaying his isiphandla on his wrist, have become part of how we encourage and celebrate the diversity of who we are. These may not seem significant in the bigger scheme of things, but human identity, self-determination and self-expression are such integral parts of human dignity. South Africa has done remarkably as we observe how other societies fight to impose uniformity as part of a dominant culture, to their great detriment. 

The recognition of diversity, however, also does not come without its challenges. The 2004 UNDP Report described cultural liberty in the following terms: 

“Cultural liberty is a vital part of human development because being able to choose one’s identity — who one is — without losing the respect of others or being excluded from other choices, are important in leading a full life. People want the freedom to practise their religion openly, to speak their language, to celebrate their ethnic or religious heritage without fear of ridicule or punishment or diminished opportunity. People want the freedom to participate in society without having to slip off their chosen cultural moorings. It is a simple idea, but profoundly unsettling.” 

It is unsettling in that, if not properly managed, the excesses of cultural liberty could result in a polarised society as we focus more on the things that make us different from each other, rather than those that we share in common. 

Government — open, accountable and responsive 

The kind of government the Constitution contemplated, and the relationship between it and its people, was likely to take centre stage as it has done for the past 25 years. The Constitution speaks of open, accountable, transparent and responsive government. 

From a legal perspective, much has happened to give effect to that vision. The Promotion of Access to Information Act, Promotion of Administrative Justice Act, the Public Finance Management Act and the Local Government: Municipal Finance Management Act are some of the laws passed; institutionally are the independent Chapter 9 institutions; and finally, the South African Human Rights Commission, the Public Protector, the Auditor General, and Parliament and its oversight role, have all contributed to a system of greater accountability and one where government is expected to justify the use of the power at its disposal. 

Here one is reminded of the eloquent articulation of that concept by the late Prof Etienne Mureinik in his characterisation of the interim Constitution, when he said: 

“If the Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification — a culture in which every exercise of power is expected to be justified, in which the leadership given by government rests on the cogency of the case offered in defence of its decision and not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.”

In the past 25 years, there have been periods when that ideal has been held high and shaped governance, but there have also been dark periods when there have been attempts to relegate it to an insignificant principle. 

But even in these periods, the vigilance of civil society and the public at large has seen significant judgments to ensure that the principle of justification or accountability does not lose centre place, and credit must go to government in observing court orders, even when they were on the wrong side of such orders or opposed them being granted. 

How the rule of law has become a significant feature in regulating power and its exercise perhaps owes much to the jurisprudence of the courts — the principle of legality, the notions of both procedural and substantive fairness and the concept of rationality have all contributed not to the idea that government must be restrained, but rather to the uncontested principle that power must be lawfully exercised. 

Poverty and inequality 

Universally claimed, the Bill of Rights with its extensive provisions covering not just classic civil and political rights, but also a strong commitment to social and economic rights within the framework of advancing social justice, was held up as the terms and scope of the promissory note to a better life and the means through which to free and fulfil the potential of all. 

Mindful that the transition to democracy was not accompanied by any change other than political, and that the economic and social landscape remained unchanged after 28 April 1994, the Bill of Rights assumed even greater significance. 

While there has no doubt been much that is worthy of celebration on this front, including most of civil and political rights — the right to vote, to association, to a free and independent media, to equality before the law, in other areas and, in particular, in the improvement of the material conditions under which people live, progress has been much slower, as the Diagnostic Report reminds us.

While the rights framework remains important, we have also seen the commodification of rights — those who can afford rights, buy them, and so a private system where people buy education, healthcare, housing, social security, safety and security and even equality before the law in accordance with their means, while others rely on the public system and on the state to provide these. 

Two parallel systems that deliver common public goods delivering qualitatively vastly different outcomes. The idea that we are all equal before the law is tested daily in our legal system. People who face the risk of the loss of their homes or their livelihoods are not able to invoke the protection of the law because they do not have the resources to do so, while others can litigate in defence of matters that may be regarded as trivial in the bigger scheme of things. 

The promise of equality before the law rings hollow in such circumstances, and it is cold comfort to someone who has lost their home to be reminded that, indeed, they are equal before the law. Hardly the idea of an egalitarian society and likely to entrench the idea of a divided society. 

How do you address massive inequalities in the country with limited resources? I guess you have a conversation between those who have the resources and those who do not. And in this regard it is us — those of us who are at this conference, those of us who have been able to flourish in this democracy and those of us who benefitted from the political and economic order that preceded 1994. Ours is a fragile democracy and its fragility is compounded by the massive inequalities that exist, and it must be the responsibility of all of us to become a part of this conversation. I hope you think about this in your deliberations over the next few days. 

Conclusion 

And so, where to from here? Firstly, the Constitution I believe remains an enduring framework for the ongoing transformation of our society. Its ability to speak to the reality of South Africans, irrespective of their situation, has enabled the development of, at the very least, a consciousness about the Constitution. 

Many have deployed it using its provisions, both as a sword to advance their position and dismantle the obstacles that stand in their way, and as a shield to defend them from the excesses of power. On the other hand, many others still wait for its promise to be realised. 

We know the challenges that face us are formidable, yet we have the Constitution and still the collective will to transform our society. But real transformation cannot be a matter of lip service. It requires a commitment from all of us and fundamental change to the structure that continues to render us such a disparate and unequal society. 

It is the inequality and the poverty that represents a significant threat to the fragile democracy that is in place. Ultimately, democracy must deliver on the dividends of what it promises; in our case, social justice and equality — if it does not, what is the enduring value of having a democratic system? What is the value in defending it when it is under attack? 

Perhaps Gandhi’s words ring true at our current time, when he said that the rich need to learn to live more simply so that the poor can simply live. As we start the next quarter of a century of the life of our Constitution, it is a future that awaits us and we must believe it is one that is reachable, as former President Nelson Mandela reminded us some 25 years ago in 1996. 

Today we ask: how was it possible and how did South Africa and the world allow apartheid to survive for so long? That same question will be asked of us — namely, how did a society that suffered and sacrificed so much, allow poverty and inequality to endure for so long when we had the means and the ability to overcome it? What will our answer be? 

Allow me to wish you well in the deliberations that will follow during this conference and may you emerge with new energy, creative strategies and a firm resolve to continue to make a difference. DM/MC

Justice Jody Kollapen is a Judge of the Constitutional Court of South Africa. He was appointed by Cyril Ramaphosa on 24 December 2021, and began his service on 1 January 2022. He has previously served as a judge of the Gauteng High Court, and as the commissioner of the South African Human Rights Commission. Prior to joining the Commission in 1996, Kollapen practised as an attorney, and was a member of Lawyers for Human Rights for five years. He coordinated the “release political prisoners” programme. He has worked on cases such as the Sharpeville Six, the Delmas Treason Trial and the failure of the Medical and Dental Council to enquire into the behaviour of the doctors who treated Steve Biko.

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  • Many problems could be solved by competence and money: but cadre deployment and corruption rob us of both. Sadly our constitution can’t stop this. However it is a crucial and excellent document and we would be worse off without it.

  • Today we ask: how was it possible and how did South Africa and the world allow state capture to survive for so long? That same question will be asked of us — namely, how did a society that suffered and sacrificed so much, allow corruption to endure for so long when we had the means and the ability to overcome it? What will our answer be?

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