The commentariat has devoted much time to the conduct of the EFF following its campaign against Clicks. To be clear: the Clicks advert was a deeply disturbing act of egregious racism and thus was deserving of fulsome condemnation. It again revealed the problem of racism in the country, which is, sadly, alive and well and not only among the “when-we” and bittereinder brigades. Had the EFF called for a boycott of stores, demanded meaningful restitution from Clicks or conducted peaceful pickets outside the stores, that would have been protesting within the confines of the Constitution. But that is not what its supporters did – far from it. Trashing stores and creating a climate where firebombing of stores is justified, is a manifestation of a deep disregard, indeed a contempt, for the guardrails of the Constitution.

Even more disturbing is the naked populism of the reaction. By contrast, when Nathaniel Julius, a 16-year-old boy suffering from Down syndrome was killed at the hands of the police, one might have expected a burst of outrage, but there was little. But, I hear you say, he was coloured and therefore not deserving of serious attention? Really?! But then what about Collins Khosa, who suffered the same fate? And what about the millions of children, the majority being black, who suffer daily from hunger? A populism that is predicated on a myopic version of identity politics is less interested in these pressing questions of structural racism than it is about forms of rent-seeking for a select few. And then, in turn, the constitutional vision is only invoked when it works to the advantage of the rent-seekers.

At the opposite part of the spectrum lies the DA, with its freshly minted policy in which race is eschewed as part of the legal infrastructure to ensure redressing disadvantage in a society that has experienced more than 300 years of racism.

Let us leave aside a shift to class as the key determinant for addressing disadvantage which, one would expect, should be accompanied by a social-democratic set of economic policies to address class disadvantage. That is a separate debate.

The problem is that the Constitutional Court has consistently found that section 9 of the Constitution is, in significant part, designed to effect redress for the centuries of racism that have prevailed in South Africa. As an illustration, Ngcobo J, writing for a unanimous court, observed, in Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and Others that:

“In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it.”

This dictum has been repeated often by the court. The Constitution is not race-neutral and any attempt to write out of law any and every consideration of race would clearly be unconstitutional. Admittedly, a final judgment can only be finalised once legislation that seeks to translate this policy into law has been published. But a per se race-neutral law would, if it holds, for example, distributional consequences, run counter to section 9 of the Constitution, as that section has been interpreted by the Constitutional Court.

But even if a legitimate carve-out could be achieved to have non-racial signifiers of systemic disadvantage operate in place of race considerations, a raft of legislation would still be necessary. Given the widespread racism that is prevalent in South Africa, both express and by way of unconscious bias, law will be required to provide remedies to those on the receiving end of this bias. And that legislation, like the UK Equality Act of 2010, would need to define race in order to afford protection against racist action. And for those who argue that such legislation is not needed, as Justice Ruth Bader Ginsburg was fond of telling her clerks, when auditions for vacancies in an orchestra took place on a blind basis, far more women were appointed than if the audition was in the open.

The ANC started so well under President Nelson Mandela in that it was his government that were the key players in the drafting of the 1996 Constitution and in ensuring respect for adverse court rulings. Alas, over the past decade in particular that attitude has changed. The collapse of many of the fundamental distinctions between party and state has resulted in a supine legislature and the consequent evisceration of the doctrine of separation of powers between the executive and legislature. A culture of corruption is so endemic that, even after announcements of finally moving meaningfully to curb the scourge, the ANC uses a state aircraft to travel for party purposes to Zimbabwe. While the party is now to reimburse the state, that senior members of the party went in the first place shows luminously how absent the internalisation of these key distinctions is among influential politicians.

Who then is left to promote and protect the Constitution when the three most influential parties, each in their distinct way, seek departures from the key principles of the Constitution? Some answers are urgently required if the future of constitutional democracy as we have conceived of that model through the 1996 text is to remain resilient. Until then, the Constitution needs more counsel of the stature of George Bizos. DM