I was going to write a column about Chief Justice Mogoeng Mogoeng’s claim that he has been receiving both legal and security advice from the Lord, but quickly realised that it is a fool’s errand to try and engage in a reasoned manner with zealously and sincerely held religious beliefs — like trying to argue with a vegan about the best way to prepare ulusu (tripe). Instead, I will focus on another issue on which reasoned discussion may be possible (except perhaps with market fundamentalists), namely the likely unconstitutionality of aspects of the draft Budget.

First things first. While Parliament has never rejected or amended a Budget tabled by the minister of finance, section 77 of the Constitution empowers it to do so. But because the Budget is a technical document, it cannot be amended in exactly the same manner as other bills tabled in Parliament. Instead, section 77(3) requires that legislation “must provide for a procedure to amend money Bills before Parliament”.

The Money Bills Amendment Procedure and Related Matters Act of 2009 is the legislation adopted to give effect to this provision in the Constitution. The act prescribes complicated procedures for amending the Appropriations Bill and the Division of Revenue Bill (the two bills are often jointly referred to as the Budget). But for our purposes, it is important to note that Parliament has the power to intervene, first, by amending the fiscal framework on which the Budget is based, and then, second, by amending the Budget itself, although section 10(4) of the Act states that any amendment to the Budget must be consistent with the adopted fiscal framework and Division of Revenue Bill passed by Parliament.

The problem with the Budget tabled last month by Finance Minister Tito Mboweni, is that it proposes cuts to spending that are likely to have a negative impact on the enjoyment of several rights in the Bill of Rights, including the right to health (section 27(1)(a), the right to education (section 29), and the right to social security (section 27(1)(c).

An open letter signed by a long list of unions, social movements and civil society organisations, calls on Parliament to reject the Budget in its current form. The letter points out that the Budget proposes “severe funding cuts totalling R265-billion over the next three years”, including:

• “R67.2-billion to be cut from spending on public health;
• “R36-billion to be cut from spending on social grants, resulting in a real decrease in income for millions of recipients of the child support grant, disability grant, foster care grant and the older persons grant; and
• “R9-billion is taken from public schools, meaning the state will spend R1,000 less per learner enrolled in the 2022 academic year compared with the 2020 academic year in real terms.”

The letter argues that in rand terms, “the austerity measures mean that government plans to spend R2,700 less per person on public services in real terms in 2022 compared with what it was spending in 2019”. These cuts are likely to have a devastating impact on the lives of poor and working-class people, and on their ability to survive and flourish. These cuts are therefore anti-poor. But to understand why they may also be constitutionally problematic, one must look at the obligations imposed on the state by the relevant provisions of the Constitution.

The right to health and social security guaranteed in section 27 and the right to further education guaranteed in section 29(1)(b) of the Constitution impose a duty on the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. The Constitutional Court held in Government of the Republic of South Africa and Others v Grootboom and Others that the obligation progressively to realise these rights requires the state to take steps to make the enjoyment of these rights more accessible “not only to a larger number of people but to a wider range of people as time progresses”.

The state has a duty to “move as expeditiously and effectively as possible towards that goal”. Of course, this is dependent on the available resources of the state and the government could point to a lack of resources to justify its slow progress in realising these rights.

But this does not mean that a court has to accept claims from the minister of finance that no funds are available, without any further interrogation when Budget cuts are likely to diminish the existing enjoyment of rights. (The latter are called “retrogressive measures”.) In Grootboom the Constitutional Court endorsed the approach of the United Nations Committee on Economic, Social and Cultural Rights set out in its General Comment 3, that:

“[A]ny deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.”

This means, as the Committee held in its General Comments 14 (among others), that the state which cuts its budget in such a way that it diminishes the enjoyment of one of these rights carries “the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for” in the context of the “full use” of the state’s maximum available resources.

Mboweni’s Budget speech and budget documents do not seem to provide strong evidence that the Treasury and the minister of finance have carefully considered all options, nor that the Budget is using the maximum available resources to limit the impact of budget cuts on the enjoyment of basic social and economic rights. The severe funding cuts in the draft Budget are a policy choice, in the context where other policy choices are available that would not infringe on the social and economic rights or would infringe on them in a less drastic manner.

Moreover, the right to basic education guaranteed in section 29(1)(a) of the Constitution is not qualified by the language of progressive realisation, which means that budget cuts impacting the delivery of basic education would automatically impose a limitation on this right. Such budget cuts would only be permissible if they could be shown to be justifiable in terms of section 36 of the Constitution, something that would not be easy to do.

As I pointed out above, Parliament has the power to amend both the fiscal framework and the Appropriations Bill. It also has the power to hold the minister of finance and the Treasury accountable by demanding that they provide proper justification for these retrogressive measures as required by the Constitution. One would think that any MP who claims to be progressive would jump at the chance to try and use this power for the benefit of the poor and working class.

Sadly, we know – as again highlighted by submissions to the Zondo Commission earlier this year – that ANC MPs (mostly) obediently toe the party line. Instead of standing up for their principles and fulfilling their constitutional duties, they tend to repeat the party talking points and to vote along party lines. Recall, that the Constitutional Court held in United Democratic Movement v Speaker of the National Assembly that members of Parliament:

“… are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.” 

These are lofty words, and many MPs (as well as Jessie Duarte) would probably be surprised to hear that they are required to uphold the Constitution – even when this clashes with their party (or factional) loyalties. (Some might also be shocked or bemused by the fact that the Constitutional Court in the same judgment assumed that MPs have a conscience that might guide their decisions.)

But the fact remains that MPs who are truly on the side of the marginalised and the poor have the power to hold the minister of finance accountable and even to take steps to have the Budget amended to mitigate the most disastrous effects of the severe budget cuts proposed in the Budget.

Yet, we have hardly heard a peep from any of them. Over the past week, several ANC MPs who are aligned to the so-called RET (radical economic transformation) faction in the party (as well as Secretary-General Ace Magashule), made strong statements in support of the incompetent and dishonest public protector, yet none of them has bothered to announce that they would oppose the austerity Budget and would refuse to vote for it unless it is amended.

The Budget bill is not sacrosanct. It can be amended. When the bill is likely to infringe on several rights and to have a dramatic negative effect on the lives of poor and working people, MPs have a duty to demand answers and, if necessary, to amend the Budget bill to ensure rights’ protection. But are there any MPs who are brave and principled enough to do the right thing, or was the Constitutional Court mistaken when it assumed that MPs, too, have a conscience? DM