Twenty-five years ago, the Constitution of the Republic of South Africa was passed into law by Parliament. At this momentous session of the democratically elected legislature, then-deputy president Thabo Mbeki delivered his “I am an African” speech. 

With eloquence and perception, he captured the essential idea of a new South African identity, the development of which remains essential to the implementation of our constitutional vision.

A quarter of a century later, the optimism of that day appears to be no more than a distant recollection. The implementation of the promise of a country based upon freedom, dignity and equality for all, is even less likely now than it was at the dawn of our democracy. 

Unemployment is at record levels, coming in for the last quarter of 2020 at 32.5% – and that is the official count. In 2020, the IMF reported that the Gini coefficient, an index that measures inequality, remained close to 0.7, and the top 20% of the population held over 68% of income while the bottom 40% held 7%. Understandably, during Covid-19 in 2020, GDP declined by some 7%, but will only partly recover to drop around 3% in 2021.

Simply put, there is no viable roadmap in existence that might redress these appalling economic failures to convert the constitutional promise of a dignified life for all into reality. By contrast, to refer to Thabo Mbeki again, this time from his Nelson Mandela Lecture, “the demons embedded in our society that stalk us every minute… advise with rhythmic and hypnotic regularity – get rich! get rich! get rich! And get rich at all costs!”

The commitment that the country appeared to have 25 years ago to the constitutional vision has been replaced by a project of a coterie of rent-seekers who have substituted a luta continua for looting continuously. 

This shameful practice did not end with the fall of the Zuma presidency, as the corruption around goods which are necessary to militate against the effects of Covid-19 have illustrated. On the immediate horizon lurk power ships, rather than renewables, to solve the endemic electricity crisis and huge potential for further rent-seeking by way of the administration of Covid-19 vaccines.

The reality of the overlay of race and class continues to haunt the country. 

Essentially the same cohort of millions of our fellow South Africans who suffered under apartheid continue to live on the margins. The metanorm to evaluate performance in a whole host of professional and commercial activity remains a white one. We are very far from developing the kind of identity that Thabo Mbeki described in his 1996 speech. 

But while the spectres of racism, sexism and homophobia continue to stalk this country, the populists, who do not give a fig leaf of real concern for the plight of the poor, use race as a cover for all manner of egregious conduct. 

The true meaning and implication of racism is forgotten as the label is employed to justify the abuse of state funds, serious allegations of judicial and professional misconduct, and as a means to subvert holding rent-seekers accountable. There is simply no conduct that cannot be justified by way of the race card, however implausible it might be, and no matter the record or conduct of the use of this trump card.

Notwithstanding the majesty of the constitutional text, its promise has been superseded by the degrading realities encountered by millions of South Africans. And while human rights advocacy and litigation is important, it can only have a palliative effect when the state is as incapable as ours. 

For example, as important as successful litigation on socioeconomic rights contained in the Constitution may be, if the State has a complete lack of capacity to implement the order so granted, little will come of a positive judgment. Irene Grootboom, who gave her name to a landmark judgment on the right of access to housing, died without ever obtaining any housing! 

The upshot is that the true success of progressive litigation is dependent on a State capable of implementing the obligation to provide social and economic services. Alas, while litigation of this kind will keep the spotlight on the ineptitude, incompetence or plain corruption of the State and its agencies, rights fundamentalism – absent a capable State – is hardly a panacea.

To make the constitutional outlook even more bleak, the latest round of hearings for judicial vacancies before the Judicial Service Commission appeared to reflect a new virus – an attempt at judicial capture as applicants who had found against Jacob Zuma or the EFF in judgments they had delivered, got the “treatment”. 

Consideration of whether an appointment would enhance the transformation of the legal system played little role in the questioning of applicants. Populist identity politics and the appointment, when in doubt, of safer bets, was the dominant theme. 

Given, as Judith February pointed out, the present Constitutional Court has lost its previous intellectual heft, and further jurisprudential progress will need a recovery thereof, the jury is surely out as to whether, on the basis of the list sent by the JSC to the president, the promise of further constitutional development in favour of those most in need will be vindicated.

Twenty-five years after the optimism of the birth of the Constitution, the signs that the country will slide ever further from a country based on freedom, dignity and equality are there for us to see. 

The dream may not simply be deferred. It could be destroyed if civil society is not especially vigilant. DM