Twenty-five years have passed since the Constitution was passed into law. On that day, Thabo Mbeki delivered a majestic speech in which he captured the essence of the constitutional journey on which the country had embarked. Its core was the construction of a truly African nation united in its diversity. In it, Mbeki said:
“We are assembled here today to mark their victory in acquiring and exercising their right to formulate their own definition of what it means to be African. The Constitution whose adoption we celebrate constitutes an unequivocal statement that we refuse to accept that our Africanness shall be defined by our race, colour, gender of historical origins. It is a firm assertion made by ourselves that South Africa belongs to all who live in it, black and white. It gives concrete expression to the sentiment we share as Africans, and will defend to the death, that the people shall govern.”
Twenty-five years later, that speech is a reminder of the wasted quarter century. In place of strides taken to embrace the vision of what it is to be an African, the country is riven by populist rhetoric, rent capture dressed up as transformation, mounting unemployment and poverty. It is, sadly, also highly unlikely that any of the present crop of politicians across the political divide could construct and deliver such a unifying speech today.
None of this is to suggest that the Constitution should be in the dock. To the contrary, its text, if implemented, still promises the best hope for the society which Mbeki envisaged when he delivered his speech in a time of great optimism.
It must be conceded that far too much constitutional writing was couched in legal fundamentalism without a careful consideration of the interface between politics and law. But, sadly, that is the fault of the liberal legal paradigm which invariably over-eggs the importance of a court victory over a politics that consistently eschews policies that would meaningfully implement the constitutional scheme.
To be sure, important judgments preventing the eviction of the vulnerable, ensuring that the government did roll out antiretroviral drugs for those living with HIV/Aids, and curbing the excesses of the executive are cause for constitutional celebration. Still, with unemployment at almost 50%, the untold millions living below even the margins and a growth trajectory that makes it impossible to reverse these socioeconomic conditions, the promise of the Constitution is fast receding into never-never land.
Within this context, it is hardly surprising that a wave of anarchy crashed down on the nation this last July. To make matters worse, there have been few prosecutions following these events, notwithstanding the president’s claim on national television of it being an insurrection and that no stone would be left unturned to bring the perpetrators before the courts.
As members of Parliament correctly noted this week, the National Prosecuting Authority (NPA) has merely been converted from the destruction under Shaun Abrahams to its present somnambulism. State Capture still seems to be rewarded with prosecutorial silence. Clearly, the campaign to destroy the NPA was more successful than many may have thought. But there are orchards of low-hanging fruit, and if the NPA could jettison its ill-advised policy of only drafting charges that approximate War and Peace and sought to use the obvious mechanism of two or three charges that would simplify its task, some meaningful progress could be made. How about, in addition, using the Bar to lead such prosecutions?
Sadly, it is not only the NPA that poses a problem to the future of constitutional democracy. As this column has often documented, the Judicial Service Commission has continued in its failure to discharge its constitutional mandate. Its interview procedure for judicial appointment has weakened the Bench immeasurably. Its failure to suspend Western Cape Judge President John Hlophe, even after it voted to impeach him, cannot be justified on any plausible legal grounds. It is likely that – given a plethora of reviews, and, if necessary, appeals – Judge Hlophe will never be suspended.
Many commentators have spoken of the decline in the jurisprudence of the Constitutional Court. Take the recent decision in Thubakgale v Ekurhuleni Metropolitan Municipality. The applicants are all desperately poor. They live in appalling conditions in squalid hovels shared by up to 10 people and have precious little access to water, sanitation and electricity. Each of the applicants applied for and was granted a state housing subsidy, some as far back as 1998. They were matched to a particular stand developed with that subsidy in the Tembisa area, and ought to have been given possession and ownership of that stand and the house constructed on it.
Instead, the municipality unlawfully gave possession of the subsidised houses intended for the applicants, and to which they were still matched on the national housing database, to other residents. In a minority judgment authored by Justice Steven Majiedt, it was made clear that their constitutional rights had been breached. Therefore, the question was whether constitutional damages was the appropriate remedy in line with the court’s powers under Section 38 of the Constitution.
The minority judgment considered a number of alternative remedies: contempt of court, a declaratory order coupled with structural relief, contractual relief, statutory remedies, delict and eviction. It concluded that only constitutional damages were an effective remedy, and further that budgetary constraints were not a concern in this matter, as the municipality must have budgeted for the houses when the subsidies were awarded to each applicant. Thus, the minority judgment would have awarded damages of R10,000 to each applicant. That is the outcome that a transformative Constitution promised.
Oh no, said Justice Chris Jafta, whose order was supported by that of Justice Mbuyiseli Madlanga. The core finding in Justice Jafta’s judgment is to be found in the following paragraph:
“A failure by the state to provide houses to a particular group of people who need them cannot give rise to a claim that those people should be provided with houses immediately or by a particular date. If we accept, as we must do, that section 26 does not confer a right to claim a house within a specified time, the failure to provide a house cannot cause an injury or damage to the individual in need of a house. And without an injury, there can be no claim for constitutional damages. Moreover, the scheme of section 26 rules out any direct claim for damages.”
This corker of a non sequitur needs explication. It says in effect that there can be no constitutional damages in a case involving socioeconomic rights in that the constitutional provision which deals with a right to access to housing obligates the state to take reasonable measures to ensure the progressive realisation of the right. So, if there is no unqualified right, there is no correlative duty and thus without such a breach of a duty there can be no basis to award damages.
If the court has found that the government has contravened Section 26 because it has failed to take reasonable measures, then it has breached a duty. But Justice Jafta says there is no conceptual basis to lay down a principle that constitutional damages can be awarded. It truly stretches jurisprudential belief that this finding appears in a judgment of the highest court. Mercifully, Justice Madlanga found that constitutional damages should not be awarded as there was the alternative remedy of contempt of court. Hardly a transformative outcome for such poor people, but it has the benefit of logic and it ensures that Justice Jafta’s finding that constitutional damages can never be awarded in a socioeconomic case is not binding on the court.
The sharp point, as this recent effort illustrates, is that the current judiciary is hardly leading the transformative journey or even guiding the nation in the appropriate direction. In the context of a politics that continues to fail the majority of the country, constitutional guardrails that no longer protect the enterprise and a toxic form of populist politics that is antithetical to the constitution vision as sketched by Thabo Mbeki 25 years ago, the jury is very much out as to whether we will celebrate 50 years of constitutional democracy in 25 years’ time. DM