A Wasteful Approach to a Constitution Full of Promise

27 March 2021

Those gathered at Constitutional Hill this past Monday, Human Rights Day, did so carrying placards which proclaimed: “defend our democracy” and “defend our Constitution.”

We were there to lend support to a campaign that seeks to resist the everyday sabotage of our constitution by actors not limited to but certainly epitomised by former President Jacob Zuma and those who align with him.

Covid demanded concessions of the gathering: numbers were limited, masks worn and social-distancing enforced. For a country famed for its mass gatherings and social mobilization, this forum may have seemed a slightly odd beast.

Looking around though it was hard not to feel a weight of history: among the crowd, Sheila Sisulu and Ilse Fischer Wilson. Each needs no reference bar their own individual professional accomplishment and activism. But their presence – Sheila, of the Sisulu family, and Ilse, Bram Fischer’s daughter – seemed to gesture poignantly to the sacrifices made in some cases by generations of South Africans so that constitutional democracy, and the rights safeguarded therein, might be won.

It would probably register only as atrocious affront to those who paid the ultimate price that twenty five years on from the adoption of South Africa’s constitution of 1996 we seem to have shuddered ignominiously to a stall. 

Monday’s gathering took place in the shadows of the Constitutional Court. It too might ask: how did this happen?

Twenty years ago, I was a clerk at the court. It hadn’t yet occupied its purpose-built premises on Constitution Hill. Instead it was housed in a work-aday office park on Hoofd Street. That seemed fitting – as if this then new court needed no trappings of grandeur. It’s importance would be signified by the content of its decisions.

Among the cases that came before the court at the time was that of Irene Grootboom and this entailed deliberation as to the meaning to be given the right to access housing. Some have said that the court didn’t go far enough in what it ordered of government but no one there can say that the considerations didn’t weigh inordinately heavily on the judges. The plight of those homeless and without shelter all too obvious but a recognition too that government in a developing state had finite resources and competing pressing demands as to healthcare, education and social security, among others.

The outcome: that there was to be progressive realisation of socio-economic rights. In the intervening years though there has been limited energy and resources expended delineating just what progressive realisation should look like.

Instead on Thursday the Court will be asked to rule on a question the answer to which must be obvious to anyone who genuinely asks: must a former president who fails to observe the lawful authority of lawfully established commission and that of the highest court in the land earn penalty for that failure?

It is about as constitutionally emaciated a dilemma as that posed by the social grants crisis, now having clogged the court for far too long, and which essentially forced the court to rubber stamp the extension of an unlawful, predatory contract because the court was left with no alternative and because it certainly wasn’t going to countenance disruption to payment of grants to beneficiaries – whatever the indifference of the then Minister of Social Development to such a fate.

But here’s another way in which the loss wrought by the years of state capture might be tallied: far from our Constitutional Court being asked during these years to realise and give content to the constitution’s highest aspirations for the people of South Africa, it has again and again been required only to shore up the bare minimum of what the constitution demands. 

The price of that lost opportunity cost though is incalculable.

Nicole Fritz is the CEO of Freedom Under Law.

This opinion piece was first published in Business day on 24 March 2021, available here.