On 21 February, the day after World Day of Social Justice, the iconic Justice Albie Sachs, recently honoured with the naming of a global human rights award after him by the Clooney Foundation for Justice, will deliver the 4th Annual Social Justice Lecture at Stellenbosch University.  

Retired Constitutional Court judge Albie Sachs. (Photo: Gallo Images / Netwerk24 / Felix Dlangamandla)

International Social Justice Day is commemorated globally under the championship of the United Nations. Every year on 20 February, since then, the United Nations secretary-general has issued a statement highlighting social justice as a pressing global challenge and calling on all states and other parties to intensify action aimed at advancing human rights. 

On 20 February 2019, UN Secretary-General António Guterres tweeted: “Social justice is one of the foundations of peace. Its pursuit is at the core of the UN’s mission to promote development and human dignity for all.”

 In its call for social justice in the digital economy made on 20 February 2021, the Geneva Centre For Social Justice said the following:

“‘Social justice’ is a political and philosophical theory that seeks to promote equal access to wealth and opportunities for all individuals in a society. The concept of social justice first came into use in relation to class differences seen in 19th-century Europe. At the time, owing to the rampant exploitation of human labour and class inequality which presented itself in most European societies, social justice advocates were concerned with economic matters. As time went on, the concept of social justice has largely moved away from an emphasis on class divisions and toward other causes of inequality in society, such as race, sex, gender, ethnicity or religion. Actions toward increasing social justice can and should be pursued on local, national and international levels, and in private, public and civil sectors.

“On the international level, social justice is a fundamental pillar for fulfilment of the principles of the United Nations, especially with regard to human rights. When we defend these principles, we fight for the promotion of a peaceful and prosperous society with sustainable development; respect for the environment; the rights of men and women, children, migrants and refugees; as well as with the elimination of the burdens people face due to gender, age, race, ethnicity, religion, culture or disability.  The United Nations General Assembly recognises the critical importance of social justice and its interconnectedness to peace and security, human rights and fundamental freedoms. Social justice is a compass for the promotion of peace, security and human rights in all nations and regions of the world.” 

Barriers and opportunities

The UN theme for Social Justice Day 2023, which, together with South Africa’s outlier challenges, forms the context within which the 4th Annual Social Justice Lecture will be taking place, is: “Overcoming barriers and unleashing opportunities for social justice”. 

The UN Department of Economic and Social Affairs states:

“As recognised by the World Summit, social development aims at social justice, solidarity, harmony and equality within and among countries, and social justice, equality and equity constitute the fundamental values of all societies. To achieve ‘a society for all’, governments made a commitment to the creation of a framework for action to promote social justice at national, regional and international levels. They also pledged to promote the equitable distribution of income and greater access to resources through equity and equality and opportunity for all. The governments recognised as well that economic growth should promote equity and social justice and that ‘a society for all’ must be based on social justice and respect for all human rights and fundamental freedoms.”

Back to the roots

The Law Trust Chair on Social Justice defines social justice as equal enjoyment of all rights and freedoms. 

Coined by Italian Jesuit scholar Luigi Taparelli in 1843, social justice was about fair distribution of the benefits and burdens of social coexistence and economic cooperation. Taparelli sought to call out the atrocious asymmetries of the distribution of the fruits of the first industrial revolution and commercial agriculture. 

Social justice was adopted by the League of Nations as an investment in peace, which is reflected in the 1919 Treaty of Versailles. The Convention on the Elimination of Forms of Racial Discrimination of 1965 saw racial equity as a social justice issue, while the 1995 Copenhagen Declaration for Social Development expanded the concept of social justice beyond economic equity to include equal enjoyment of all rights and freedoms. 

John Rawls, in A Theory of Justice, added the dimension of fair distribution of social prestige and equality, respect of all opportunities paired with equally fair distribution of the burdens of social coexistence.

South Africa has one of the modern Constitutions that, in its Preamble, unambiguously declares social justice as one of the core goals of its transformative agenda, together with advancing human rights and democratic values. 

However, there is a growing intellectual cohort that disavows the Constitution as anathema to the aspirations of those that were racially dispossessed of property, dignity and opportunities, and oppressed under colonialism and apartheid. 

‘Neoliberal blueprint’

A government minister also recently rejected the Constitution as a “neoliberal blueprint” that protects and solidifies the rights and ill-gotten gains of the beneficiaries of racially unjust colonial and apartheid laws, policies and related measures.

Others ask if the Constitution is more than the proverbial Potemkin village, which is simply a charade that looks glorious externally while being an empty shell, as Grigory Potemkin, governor of Crimea, is said to have done in 1787 to impress the Russian Empress Catherine the Great with non-existent villages.

Others, like Palesa Musa, lamented, on first contact with the Thuma Foundation, that poverty has the same barrier creation and opportunity-limiting effect that the Pass Laws under apartheid had. Musa, who was arrested on 16 June 1976 as a 12-year-old child for protesting against apartheid and its Bantu education, ended up with arrested development and the poverty that goes with that.

The Social Justice chair at Stellenbosch University chose her as the face of a civil-society-led Marshall Plan-like initiative it initiated to mobilise academic and broader civil society input to catalyse progress on social justice through leveraging the UN Sustainable Development Goals and the National Development Plan to significantly reduce structural inequality and end poverty by 2030.

Albie Sachs is primarily known for delivering heartfelt Constitutional Court judgments that centre ordinary persons and the ugly shadow of South Africa’s unjust history. You can glean this in many of his seminal judgments such as PE Municipality v Various Occupiers where he centred people and our ugly history in determining how to deal with those referred to as squatters on the basis of ubuntu. 

A labour of love

What is not prominent in the public domain is that justice, particularly social justice, which is essentially about fairness between social groups, has been Sachs’ labour of love for his entire life. 

For the Social Justice lecture, which coincides with the 30th anniversary year of the Interim Constitution on the basis of which he wrote the PE Municipality judgment and his concurring judgment in the death penalty-abolishing S v Makwanyane, Sachs has chosen the title “Social Justice and the Constitution: Is this the Country We Were Fighting For?”

Fighting for this country and more is what Sachs has been doing since he was 17. Sachs’ Constitutional Court biography states:

“On turning six, during World War II, Albie Sachs received a card from his father expressing the wish that he would grow up to be a soldier in the fight for liberation.

“His career in human rights activism started at the age of seventeen, when as a second-year law student at the University of Cape Town, he took part in the Defiance of Unjust Laws Campaign. Three years later he attended the Congress of the People at Kliptown where the Freedom Charter was adopted. He started practice as an advocate at the Cape Bar aged 21. The bulk of his work involved defending people charged under racist statutes and repressive security laws. Many faced the death sentence. He himself was raided by the security police, subjected to banning orders restricting his movement and eventually placed in solitary confinement without trial for two prolonged spells of detention… In 1966 he went into exile… In 1988 he was blown up by a bomb placed in his car in Maputo by South African security agents, losing an arm and the sight of an eye.” 

Sachs was involved in the conception of the Constitution’s content long before the multiparty negotiations in Kempton Park that yielded the Interim Constitution of 1993 and the Constitutional Assembly negotiations that yielded the current Constitution. 

African hopes and white fears 

In Oliver Tambo’s Dream, Sachs documents constitutional genealogical conversations with ANC president Oliver Reginald (“OR”) Tambo. Therein he gives us a glimpse of the African hopes and white fears that informed different proposals that began to float in different circles, and Tambo’s firm stance on equality. For example: 

“[A]s the struggle inside South Africa advanced and Pretoria’s international isolation intensified, proposals for new constitutional arrangements in South Africa came pouring in from all parts of the world… OR’s response was both conceptual and practical. At the conceptual level, he announced … that the ANC stood for multi-party democracy (and) … and an entrenched Bill of Rights to protect the fundamental rights of all South Africans. At the practical level he established the ANC Constitutional Committee in Lusaka to work directly with him on the new constitution for South Africa. Headed by Jack Simons and then by Zola Skweyiya, it included people like Penuell Maduna, Ted Phakane, Kader Asmal, Brigitte Mabandla, and myself.”

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Sachs probably demonstrates that the Constitution’s contents can be traced from early demands for a South Africa for all based on equal enjoyment of all rights and freedoms, and equitable sharing of all the natural resources this country offers plus equitable distribution of all the benefits and burdens of social coexistence and economic collaboration. 

What is not uncertain is where Sachs will lay the blame for South Africa’s continuing and, in some respects, growing social and economic disparities. Some unquestionably follow the contours of colonial and apartheid dispossession, oppression, exclusion of the black majority and preferential treatment of the white majority. 

Will he use a social lens that embraces the humanity of all beyond racial, class and gender equity or the intersection of these, or employ the all-inclusive lens that includes disability, the LGBTQI community, age disparities, nationality disparities and geographic disparities, among others? We wonder. 

A Potemkin village?

The question of whether South Africa’s social justice constitution is a Potemkin village is one I raised at the World Congress on Constitutional Law at Constitution Hill, at the University of Johannesburg in December 2022 and the anti-corruption conference at the University of South Africa on 9 December 2022. I borrowed the Potemkin moniker from Wits Professor Stu Woolman and advocate Michael Bishop who used it in reference to the Constitution in the book Constitutional Law of South Africa (Woolman & Bishop, 2013:12). 

In a section headed The Potemkin Constitution, Woolman and Bishop state: “We have a Potemkin Constitution because, as we shall see, many of our new institutions and new constitutional doctrines are very real and a marvel to behold. At the same time, the root causes of the riots of 2008 can be traced to a failure — over the past 14 years — to translate the promise of South Africa’s liberation into a substantially better life for the majority of South Africans.”

The question is whether South Africa’s social justice constitution is a Potemkin village.
(Photo: Wikipedia)

This was only 14 years after the adoption of the Constitution. Ten years later, not much has changed positively. In fact, more riots happened in July 2021, having been preceded by student #FeesMustFall unrest in 2017, while the aftermath of the Covid-19 regulatory impact has further exacerbated social and economic disparities reflected in further racialised decreased equity regarding employment security, income security and business ownership.

The perennial land justice questions apparently remain intractable, with much hope seeming to be pinned on constitutional and law reform on expropriation without compensation. 

The expropriation without compensation solution is, in my view, unquestionably a solution. It is my considered view that it is impossible to honestly deal with the advancement of social justice and peace in South Africa without resolving the land question. 

In his State of the Nation Address (Sona), President Cyril Ramaphosa said South Africa had only managed to redistribute about 11% of land against the target of 30% at the dawn of democracy in the country. What he did not say was that it was an interim target for the year 2000. What should concern justice- and peace-loving South Africans is that the 11% land redistribution quest has still left those classified by law as Africans with only 4.5% of the land. 

According to the Land Panel’s report of 2019, white ownership of urban and rural land remains above 70% while the rest is distributed between blacks (Africans, coloureds and Indians/Asians), trusts, corporations and the government.

It’s been eight decades already

Worth noting is that 2023 marks 80 years since the 1943 African Claims document that included the foundations of a Bill of Rights that is anchored in social justice for all groups in South Africa. The statement called for justice with regard to the treatment of all people regardless of colour, which included remedial action to redress imbalances that had already been created by racist and primarily anti-African colonial laws and other measures till then. 

This included the Natives Land Act of 1913, which had not only left the African majority with less than 8% of the land but had also caused the seizure of their homes, livestock, farming implements and other belongings while causing an exodus that saw people wander all over the country. 

From the land reports, it appears that due to the 1952 Group Areas Act and other state-orchestrated dispossession after 1943, the land dividend for those classified as Africans has worsened to 4.5%, which is a huge decrease from the 11.5 % that the 1943 African Claims lamented. 

For many ordinary persons, equal enjoyment of human rights remains an unfulfilled commitment. 

This is reflected in 55.5% poverty, which disaggregates to 1% among whites and 64.2% among Africans as extremes, while in the middle of the social gradients are coloureds, whose poverty is around 38%, and Indians/Asians at 6%. 

Income disparities deliberately created by laws such as the Glen Grey Act of 1894, the Natives Land Act of 1913 and 1914, trespassing laws and the Group Areas Act of 1950, remain racialised with gender, class and special disparities remaining compounding factors. 

There are also class, racial, gender, age, geographic and other disparities that remain as obstacles to equal enjoyment of all the rights promised to all in the Universal Declaration of Human Rights and the Constitution. 

Transcending democracy fragility

That South Africa is a fragile democracy right now can no longer be debated or speculated on. Human fragility within democratic fragility has also been exacerbated by the Covid-19 uncertainties, the Ukraine war and digital uncertainties and displacements. 

We all waited with bated breath for the President’s 2023 Sona, wondering if it contained measures that would help transcend such fragility. We also wondered whether opposition within his party and the officials in and beyond Parliament would put aside differences and ambitions to help South Africa transcend the fragility Rubicon by prioritising social justice and other pressing priorities such as reversing climate change, ending corruption and promoting peace. 

It does not seem so. The “leave no one behind” slogan was encouraging, however. 

From the moment of conception, social justice was seen as an anchor for peaceful coexistence. But the unpacking of fairness and justice has not always embraced the full humanity of all, particularly regarding race, gender and class diversity and related equity, hence the perennial challenge. 

This is why Jan Smuts signed the Treaty of Versailles in 1919 and the Atlantic Charter in 1941, yet ignored the African Claims in 1943 and kept, enforced and passed laws that fostered social injustice primarily on the grounds of race. It appears that the same continues, not only against blacks (Africans, coloureds and Indians/Asians) but also against persons of foreign origin, women, the LGBQTI community and others. 

The difference of course is that modern social injustice is less about discrimination and more about failure to consciously and actively advance equality. This includes failure to implement laws such as Chapter 5 of the Promotion of Equality and Prevention of Unfair Discrimination Act. But more insidiously, it is about the impact of  unconsciously passing “one-size-fits-all” legislation that lets others fall through the cracks.

The future 

Hopefully, this new wave of embracing social justice will finally ensure both de jure and de facto equal enjoyment of all rights and freedoms for all, enabled by non-discrimination principles, human solidarity and restitutive justice. This is true ubuntu, to which social justice must contribute. Justice Albie Sachs is sure to traverse many of these social justice dimensions in relation to the relationship between social justice and the Constitution. 

Hopefully, the answer will imbue someone like Palesa Musa with the hope that the freedom she sought in her lifetime is possible beyond the freedom to vote and the freedom from de jure inequality and related discrimination. The truth is, if we want peace and sustainable progress, we dare not leave anyone behind. DM/MC

Thuli Madonsela is the Law Trust Chair in Social Justice and Law Professor at the University of Stellenbosch, and South Africa’s former Public Protector. She is also the founder of the Thuma Foundation, an independent democracy leadership and literacy social enterprise.