There is an increasing and justifiable concern that the country is heading into a constitutional crisis.

Or, at the very least, that it is at an inflexion point where either constitutional democracy can flourish once more or, alternatively, racial populism triumphs, sweeping asunder the constitutional vision of a non-racial, non-sexist democracy where the government is based on transparency, accountability and the economy increasingly works for 57 million South Africans.

Sadly, much of the political oxygen is presently being consumed because of the role of the incumbent to the constitutionally created office of the Public Protector. In a truly functioning democracy, a finding by the highest court in the country of bad faith and sufficiently egregious dishonesty to be mulcted with a punitive costs order (as opposed to simply making a bona fide mistake of law or fact), would be visited with removal from office. In the present political context, this is unlikely to happen with Busisiwe Mkhwebane.

In itself, this is but a symptom of the bigger problem. The core constitutional vision of a non-racial, non-sexist egalitarian society is under sustained pressure. The sharp point is that the momentum to jettison the model of constitutional democracy will not disappear, even if a new Public Protector appears on the scene. An economy which reproduces stark levels of inequality year after year is a far greater threat. The World Bank recently reported that high inequality is perpetuated by a legacy of exclusion and the nature of economic growth, which is not pro-poor and does not generate sufficient jobs.

Inequality in wealth is even higher: the richest 10% of the population held around 71% of net wealth in 2015, while the bottom 60% held 7% of the net wealth. Furthermore, intergenerational mobility is low, meaning inequalities are passed down from generation to generation with little change in inequality, or hope for it, over time. Not only does South Africa lag behind its peers on level of inequality and poverty, but on the inclusiveness of consumption growth.

The latest unemployment figures only add to the gloom. Some 6.65-million people who are seeking work are unemployed; that is a figure of 29%. But the real picture is even worse: youth unemployment (that is for people between 15-24) is at 56 % and the overall figure increases from 29% to 38.54% when an expanded definition is employed, that is inclusive of those who no longer are seeking employment.

With a non-existent growth rate measured at a 1% increase in GDP, this set of figures can only get worse; hence the rife conditions for populist politics, which exploits legitimate grievances. One only needs to look at Donald Trump, Boris Johnson, Nigel Farage, Jair Bolsonaro, Viktor Orban or Recep Tayyip Erdogan to realise that the shift away from deliberative constitutional democracy to the personality cult, and with it the increasing erosion of the constitutional structures, to realise that this country is not unique, especially regarding the potentially bleak future for constitutional democracy.

A somewhat more particular problem is the tardy pace of land reform and the almost untouched nature of the country’s spatial geography.

Within this bleak context, it is regrettable that more attention has not been placed on the final report of the Presidential Panel on Land Reform, published late July 2019. In it, the panel notes that “the message of the land reform process is not to undermine the property rights of individuals but to realise the Constitution’s mandate to deliver land reform as a corrective and restorative measure to historical issues”.

A critical recommendation is to pass legislation which will operationalise “equitable access” and provide transversal frameworks for all aspects of land reform; to establish guiding principles for redistribution, restitution and tenure with land administration included as the fourth element of land reform; to set legal criteria for beneficiary selection; land acquisition and the choice of land for redistribution; to set in place measures to ensure transparency and accountability; enable allocation of secure long-term use and benefit rights; to provide for alternative dispute resolution and to establish a Land Rights Protector as an ombudsperson with a broad mandate across all land rights issues.

In addition, the panel has emphasised the importance of reform of both rural and urban areas which so depressingly remain substantially unaltered, notwithstanding 25 years of democracy. In this connection, the panel emphasises the imperative of altering the spatial planning approach to settlement patterns by investing in a settlement on redistributed land. A reform of the process must allow for more dispersed settlement on the urban fringe to support urban agriculture and part-time farming, and formalise and service small rural settlements. Densification needs to be part of urban land reform.

The differences within the panel notwithstanding, there was a clear agreement that the following represented critical success factors in any land reform programme:

1. A shared vision for land reform.

2. A capable state.

3. Enabling participation, where the government works with communities and the private sector.

4. A commitment to implementation.

5. Curbing corruption.

6. Managing social and economic risks to allay negative impacts and fears.

7. Communicating to manage misperceptions and build solidarity.

In short, accountable and efficient government is of critical essence if meaningful land reform is to take place. Significantly, these proposals envisage the appointment of key personnel; in the light of the lessons learnt from the appointment of the Public Protector, it is vital that rigorous, transparent procedures for appointment be utilised if the reforms are to be successful.

A tangible move has to be made to change the increasingly dangerous conditions which so threaten a constitutional crisis. A good start would be a deliberate and meaningful commitment to the implementation of the panel’s recommendations, which may well tilt the balance in favour of the constitutionalists in this country as opposed to the populists and their opportunistic discourse. DM