While the learners of rich parents attending the better schools were probably assisted and while their parents probably bought their own textbooks, those who really need the textbooks are having their education sabotaged by people who could not care less. Surely this is far more obscene than one painting could ever be?

Politicians with their disgustingly large ego’s (often far larger, it seems, than their sense of pride in who they are and in their country or their sense of responsibility as elected servants of the people) and their small tolerance level for hard work have overseen this mess, while enjoying the perks of the Ministerial Handbook and while feeling important about being politicians whose dignity the rest of us are supposed to respect. Stuff the dignity of the poor! Stuff the dignity of the school children being denied a proper education! Let’s rather get into a blue light convoy and drive around Limpopo to show how important we are and to demand respect and to insists that OUR dignity be respected!

Bureaucrats have been playing Tetris on their computers, filing their nails or scheming to land more government tenders by corrupt means (or whatever those bureaucrats do instead of doing their jobs), while indecently neglecting the interests of school children who have been forced to go to school without access to textbooks.

It took Section 27, an NGO engaged in promoting social and economic rights, to approach the North Gauteng High Court to do something about this disgrace. That is why last week Judge Kollapen ordered the delivery of textbooks to schools in Limpopo and the implementation of a catch-up plan for Grade 10 learners. Judge Kollapen ordered the DBE and the Department to deliver textbooks to all schools in Limpopo by no later than 15 June 2012.

He further ordered that a catch-up plan must be formulated and a copy lodged with the court and the applicants by 8 June 2012. The catch-up plan must identify gaps in curricula and the extent to which the quality of teaching and learning has been prejudiced by the lack of textbooks. The Court ordered the Department to indicate what remedial measures will be put in place to address these problems. They are also required to lodge monthly reports with the court and the applicants on their compliance with the catch-up plan, which must be concluded by the end of this academic year. In addition, Grade 10 learners throughout the Province will benefit from the catch-up plan, which will assist them in closing the gaps in their syllabi caused by the late delivery of textbooks.

While many South Africans seem to have gotten rather upset (in a choreographed expression of moral outrage) about the supposedly inhuman, racist, degrading and humiliating painting of our President because the painting depicts – gasp! – a penis, the real inhuman, racist, degrading and humiliating neglect of our government selling the school children of Limpopo down the drain goes unremarked on. Why worry about a few million starving children when one can get cross about the Presidential willy.

I guess it would be too shameful to feel disgusted by this criminal neglect of our government, because then we would have to confront the immorality of the very system which we often condone or benefit from. We would have to confront the fact that millions of South African children are not only denied decent schooling but also grow up hungry and exposed to preventable disease and that as a society we can do something about it but that – collectively – we do not care enough to take action or to force our government to take action. Far easier to howl in anger about the depiction of a Presidential willy than to confront the real moral decay at the heart of our society, namely our collective disgust and hatred of the poor and our blind celebration of those who acquire material things and our own mad chase after money and material things that might, momentarily, make us feel as if we are worthy of the kind of respect we demand being shown to a second rate politician.

(In any case, what is so special about a man’s penis? Unless one is a patriarch who sees the penis as a symbol of male power and unless one believes a man deserves special treatment and can demand special respect merely because he happens to have a little willy, that organ is a rather silly, inconsequential and laughable appendage, not much different from the belly button or the small toe. Those who invest it with so much meaning - which includes the artist in question - are really just perpetuating male domination and a belief in male superiority by investing the phallus with an almost mystical importance – I almost wrote impotence.  How ridiculous and irrelevant.)

What kind of a country do we live in where so many people can get so angry about a painting of a silly willy, but can blithely ignore the disgusting and even criminal neglect by our government of the education system in one of the poorest provinces in South Africa? Why are we not marching to the President’s house demanding answers about the fact that a new Unicef report - yet to be released – found that 11.5million of the country’s 19 million children are living in poverty. The report states that 7 million children are living in 20% of the poorest households and shows that poor children are 17 times more likely to experience hunger and three times less likely to complete school than children from wealthier backgrounds.

Why are we not outraged at the fact that the government is sabotaging the future of hundreds of thousands if not millions of (mostly black) children (in Limpopo and elsewhere) because government officials and politicians are either too lazy, or too lacking in respect for themselves and their fellow citizens, to do their jobs properly and because those who have money and power (also those working in the private sector) are too greedy to pay more taxes and so many others are too scared of speaking out about the injustices and coprruption around us for fear of being ostracised by friends and family who continue blindly to support the ANC government?

We live in a country where the human dignity of millions of people are daily disrespected in a systematic and structural manner. What kind of dignity is it that we supposedly are so respectful of if we allow, through our silence or our greed, a situation to continue in which many South Africans are dying of hunger or go to bed at night shivering in the cold and wet under a bridge? Surely, we should all feel ashamed and disgusted that so many of our fellow citizens have very little freedom and cannot make meaningful life choices because they are unemployed, hungry and sometimes homeless? The immorality of the social and economic inequality and the depravation around us is something that should anger us all.

Surely if we are going to get angry (and we should), it should not be because of a self-righteously fake morality conjured up by patriarchs about something as utterly banal as a (not-real) depiction of a rather small part of the human anatomy? So where is the anger about the true immorality that is at the heart of this society we live in?

However, the Constitution does more than protect citizens against the abuse of power by the political branches of government – and rightly so. This is because the ability of ordinary citizens to live lives in which they are free to make life choices and to pursue their own interests and advance their well-being (the US Constitution in its characteristically optimistic manner speaks of the “pursuit of happiness”) is not only constrained by the state but also by private institutions and individuals who have the economic power or social status to limit the freedom of citizens, either directly or indirectly. Private institutions or individuals who are not constrained by the Constitution may well act in ways that directly or indirectly infringe on the human dignity of ordinary citizens and will often act to limit the freedom of citizens to make rational choices in their best interest to enable them to live meaningful lives.

Moreover, poor and marginalised individuals (through no obvious fault of their own) often do not have access to the very basic minimum goods and services — housing, health care, adequate education, food,  water, electricity and the like — and have no access to the resources to pay for those goods and services that would provide them with even the illusion of the kind of freedom that would enable them freely to choose how they want to live and who they want to become and how they wish to flourish.

That is why our Constitution contains not only the civil and political rights mentioned above, but also a set of social and economic rights. That is also why the Constitution places both a positive and a negative duty on the state to take steps to protect and realise both kinds of rights.

The state therefore has a negative duty not to interfere with the existing enjoyment of one’s right, say, to freedom of expression. Thus it cannot usually pass a law banning any criticism of the President. Similarly, the state has a negative duty not to interfere with one’s right of access to housing. Thus it cannot usually pass a law that would empower the state to demolish your home to make way for a parking lot for the use of politicians or to evict you from your home to make way for the North Korean Olympic team. Similarly, the state has a positive duty to create and maintain a police force and a judicial system, an education system and an electricity grid and water supply and roads and independent institutions to conduct elections, to ensure that we are all sufficiently free and capable to develop and to try and reach our full potential as a human being.

That is also why the Constitution clearly states that one can, in certain circumstances, enforce rights against private individuals and institutions. What use is my freedom of expression, say, if my cell phone company is allowed to prohibit me from sending sms messages criticising the President (especially when this company is in cahoots with all other telecoms companies in the market)? And what use is my right to life, say, if a private hospital can refuse to treat me even as I lay bleeding to death in the reception area of that hospital?

Radical free market capitalists do not like to hear this, but the kind of freedom they envisage and which they say is protected by narrow civil and political rights is often illusory, as any semblance of freedom is premised on access to education, to employment or, in the absence of this, at least to access to all the basic stuff required to make meaningful life choices.

Civil and political and social and economic rights are thus interdependent and indivisible as BOTH kinds of rights — operating in tandem — guarantee the kind of freedom which would truly protect and enhance the human dignity of all citizens. But for those who support human rights only if it protects the free market and the rights and freedoms of those who have the access to resources that would enable them freely to make choices, freedom is often little more than the freedom of the rich to exploit the poor and to continue doing so without interference by the state.

“The law, in its majestic equality,” said Anatole France, ”forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” This is the kind of legal regime that those who reject social and economic rights seem to favour. Put differently, in the world of radical free market capitalists, we are all free to choose to stay in the Mount Nelson Hotel if we want to — even if many of us are starving and only very few of us can indeed afford to do so and will ever have the money to pay for one night in the Mount Nelson (unless we happen to be the head of the South African Communist Party in which case the taxpayers will foot the bill).

It is exactly because our Constitution embraces a far more nuanced and expansive (and far less selfishly pro-rich) notion of freedom, that the Bill of Rights includes both social and economic and civil and political rights. That is why arguments made by columnists like Ivo Vegter are so wrongheaded and (to me at least) morally repugnant. In a recent column published on Daily Maverick, Vegter sets up a false dichotomy, arguing that there is a need to distinguish clearly between “freedoms on one hand, and entitlements on the other”.

Freedoms are those rights that prevent another person — and in particular the state — from acting in a way that infringes your liberty. Entitlements are those rights that are economic in nature, and implicitly impose a financial obligation upon someone else.

Vegter fails to acknowledge that liberty itself is not something that can be adjudged in isolation. One has no liberty if one is poor and homeless — except if one defines liberty as the freedom to starve and die of hypothermia. But Vegter, over-egging the pudding even further, then proceeds to make the following astonishing claim that seems to be at odds with any modern notion of social solidarity, which is a bedrock principle on which the modern nation state is based.

The problem is this: if I have a right to healthcare, and I cannot, refuse to, or neglect to pay for it, someone else has to either provide it at no charge, or pay for it. If I have a right to housing, then someone has to buy or build me a house. If I have a right to food and water, which are indisputably necessities of life, and I fail for whatever reason to provide these for myself, then someone else is obliged, by law, to provide them for me. This, in effect, means that someone else has to produce that to which I claim a basic human right, guaranteed to me in the Constitution. There’s a word for people who are obliged to work for others without choice or payment. And those people, under the South African Constitution, have the right not to be subjected to slavery, servitude or forced labour.

In a modern state, the notion of social solidarity leads to the formation of a government that raises money through taxes. In return, the state is required to take such steps as to allow all citizens to flourish. Without this basic solidarity, this notion that we are all in it together and that we have a right to demand that our taxes are spent on roads and electricity production and water purification and education and a police force, there is no need for a modern state.

For citizens to flourish they must be free to make real choices about their lives and how they want to advance their own interests. Without roads, without schools, without a criminal justice system and a police force, without the institutions that safeguard our right to vote, without access to basic health care, no one has any semblance of freedom and the rights that are supposed to guarantee this freedom. Freedom, in essence, is an expensive commodity as are all the rights protected in a Bill of Rights – even in a liberal Bill of Rights that contain no social and economic rights guarantees.

The distinction between rights and entitlements made by Vegter is a false one. None of us can provide everything we need to flourish for ourselves. We need the state to assist us, in essence to provide us with what Vegter calls “entitlements”.

We can have no freedom and no rights, for example, if we have no legal system, no police force, no judiciary, no system of roads, no telecommunications infrastructure, no regular safe and clean water supply and supply of electricity. Without these state subsidised institutions, life would indeed be “nasty, brutish and short” for most people. Yet we have a right to life, a right to freedom of movement, a right to freedom of speech — all derived from the system and the infrastructure paid for by all taxpayers. In the same way, those who do not have money to pay for education of health care should have a right to demand these from the state. If they do not have access to such things, they are not free in any meaningful sense of the word and they have no rights — including the precious civil and political rights, Vegter champions.

All rights are limited by budget constraints. Vegter approvingly quotes someone who claims that: “Rights are not limited by budget constraints, but entitlements are. So, rights are universal but entitlements are not.” This is false. My right to freedom of expression and assembly is limited by budget constraints, just as my right to housing is. For if I want to have my say and if I want to take part in a protest march then I might need the police to protect me from others who might want to kill me for expressing my view. The police service costs quite a lot of money to run and it has limited resources, so it will not be possible in every single case to insist on exercising the right to free speech and assembly and be protected by the police. In any case, how will I be able to protest freely, if I am too hungry to do so? What kind of right is that if my lack of access to food makes its exercise impossible.

Human rights — whether they are civil and political in nature or social and economic in nature — is not to be confused with charity. Vegter seems to argue that whenever rights cost money they are no more than charity. This is conceptually wrong and ideologically reactionary.

Unless one lives in a totalitarian state, rights are a prerequisite for the exercise of one’s freedom. Without the protection of these rights — which are interdependent and indivisible — everyone except the most wealthy and powerful will have no chance of living a meaningful life, a life of dignity, which is the ultimate aim of human rights. It is not charity when the state pays the police to protect me. Neither is it charity when the state pays a doctor to save my life. This is because in both cases, without the intervention of the state, I might not be capable of living a meaningful life or, worse, I might be dead.

Or do they use the term rather disingenuously to try and justify the appointment of essentially anti-poor, deeply formalistic judges whose judgments will disregard the interests of the marginalised and might even champion the interests of the rich and powerful? Moreover, which judges are best placed to take on the challenges of legal transformation — within the disciplining boundaries of the separation of powers doctrine — and which judges merely cling to notions of legal formalism to the detriment of the poor and marginalised and in resistance to the transformation of the legal culture?

These questions are all raised by the fascinating Constitutional Court judgment in the case of Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd, which was handed down today.

The majority judgment, written by Justice Edwin Cameron (Moseneke DCJ, Froneman J, Nkabinde J, Skweyiya J, Yacoob J and Van der Westhuizen J concurring), grapples with the transformative effects of the Constitution and the Rental Housing Act on the relationship between landlords and tenants. The judgment also attempts to empower Rental Housing Tribunals, Tribunals created by the democratic legislature to protect the rental housing market while also addressing the unequal power relations between landlords and tenants.

The minority judgment, written by acting judge Ray Zondo, who has reportedly been earmarked for appointment to the Constitutional Court (Mogoeng CJ and Jafta J concurring), displays a surprisingly formalistic and pre-constitutional attitude to the law that applies between landlords and tenants. The minority judgment, relying on what seems to me to be misguided technical arguments, would have upheld the freedom of a landlord to cancel a lease, hike rents or have tenants evicted who cannot afford the steep hikes on rentals, regardless of how unfair the landlord might have acted (all because they supposedly failed to plead their case correctly). The minority judgment also seems rather disrespectful of the principle of separation of powers, which would have required them to engage seriously with the Rental Housing Act, a piece of legislation passed by our democratic Parliament.

The narrow question in this case seemed to turn on the question of when a landlord could legally cancel a lease and evict its tenants. But behind this formal question lurked the larger question of how the constitutional protection against arbitrary eviction (enshrined in section 26(3)), as well as the protections afforded to tenants by the Rental Housing Act, limited the discretion of the landlord to evict tenants or raise rents.

The applicants are tenants in Lowliebenhof, a ten-storey block of flats in Braamfontein, in the inner city of Johannesburg. The flats are their homes, and they live there in terms of various leases. The respondent landlord bought the building, upgraded it, and then wanted to increase the rent. To do so, it cancelled the tenants’ leases, but offered them new tenancies, on identical terms, though at rents of between 100% and 150% higher than the original rents. The tenants resisted and the landlord brought eviction proceedings. The original lease only allowed an annual rent increase of between 10% and 15% and the cancellation of the leases were aimed at circumventing these clauses.

The tenants put forward several arguments about why the landlord was not permitted to cancel the leases to raise the rents, based on the Constitution, contract law and public policy as well as on the interpretation of certain provisions of the Rental Housing Act. In the end the majority argued that it was unnecessary to develop the common law of contract to deal with this case. Instead it relied on the provisions in Rental Housing Act, which state that the landlord may not engage in “unfair practices” in its dealings with tenants. The Supreme Court of Appeal (SCA) had found that this phrase did not apply to a case like the present because an unfair practice contemplated in the relevant section was “incessant and systemic conduct”, not a once off termination of a contract aimed at hiking the rents.

The majority rejected this view and said that the Rental Housing Tribunal should have decided whether there was an unfair practice in this case. It pointed out that the Act provides that an unfair practice ruling “may include a determination regarding the amount of rental payable by a tenant” or may relate to any termination of the lease in respect of rental housing property “on grounds that do not constitute an unfair practice “.

The Act states that when a Tribunal makes a determination about the rent to be charged, it “must be made in a manner that is just and equitable to both tenant and landlord”. In addition, the rent determination must take “due cognisance” of “(a) prevailing economic conditions of supply and demand; (b) the need for a realistic return on investment for investors in rental housing; and (c) incentives, mechanisms, norms and standards and other measures introduced by the Minister in terms of the policy framework on rental housing…”.

The majority thus found that the Act demands that a ground of termination must always be specified in the lease, but even where it is specified, the Act requires that the ground of termination must not constitute an unfair practice. A Tribunal can decide whether such a termination constituted an unfair practice — regardless of what the lease might have stipulated. The effect of these provisions is that contractually negotiated lease provisions are subordinate to the Tribunal’s power to deal with them as unfair practices.

It means that unfair practices are not determined by taking into account only the common law legal rights of a tenant or landlord, but by considering also their statutory interests. This makes it even clearer that the statutory scheme does not stop at contractually agreed provisions, and conduct in reliance on them. It goes beyond them. It subjects lease contracts and the exercise of contractual rights to scrutiny for unfairness in the light of both parties’ rights and interests.

Given this expansive interpretation of the Rental Housing Act (an interpretation influenced by the provisions in the Constitution that prohibits arbitrary evictions from housing and guarantees for everyone the right of access to housing), the majority held over final determination of the appeal (which was originally based on the request to have the tenants evicted) to enable the landlord and tenants, if so advised, to bring suitable proceedings before the Tribunal.

If the Tribunal should hold that the termination of the tenants’ leases was an unfair practice, and should the relief it grants include an order setting aside the termination, the eviction order granted against the applicants may have to be set aside. The parties must be granted leave to set the matter down in this Court for finalisation of the appeal on papers supplemented as they think fit.

The minority had no truck with this airy-fairy, bleeding heart, approach to the old fashioned area of contract law, which would have shown some deference to the democratically elected Parliament who passed the Rental Housing Act. Instead the minority would have preferred to rely on traditional contract law principles that would have allowed the landlord to cancel the lease, and to evict the tenants unless they agreed to a 150% hike in their rents. The minority argued that this case was never argued on the basis of the Rental Housing Act (although the SCA interpreted this Act narrowly in making a finding in favour of the landlord) and hence that the majority was wrong now to rely on this progressive piece of legislation to come to the assistance of the tenants.

The minority, seemingly channeling early twentieth Century British attitudes about the distinction between law, on the one hand, and values and morals, on the other, (as if there was an absolute distinction between these), argued that whether the landlord had engaged in unfair practices was not a legal question at all, but rather a value judgment requiring a judge to rely on moral values (not “law”). The Constitutional Court should therefore not have engaged with this issue at all, according to the minority.

Relying on the legal fiction that the parties “freely and voluntarily entered into leases with clauses that allowed either party to terminate them on notice and which did not say that the termination would not be permissible when effected for a certain purpose or when effected with a certain motive”, the minority would not have referred the matter back to the Rental Housing Tribunal (as the majority did).

Zondo AJ argued that:

the applicants may also have insisted on clauses that excluded certain reasons or motives for the termination of their leases. They did not do so and they have not put up any case to suggest that their bargaining position did not allow them to do so. The matter must then be decided upon the basis that, like the two tenants who included the unusual clauses that their leases could only be terminated at their discretion, the applicants, too, could have included a clause to the effect that their leases could not be terminated to enable the landlord to increase rents by amounts higher than those permitted by their leases. They failed to do so.

As Justice Froneman (in a concurring judgment) pointed out, this denial that it was permissible for the Constitutional Court to consider the interpretation of the Rental Housing Act (which might protect the tenants) in this case, was difficult to square with the law and the facts of this case.

Both the High Court and the Supreme Court of Appeal interpreted the Act and came to the conclusion that the respondent’s right to cancel the leases was unaffected by its provisions. The majority found “that interpretation to be wrong. That the interpretation of the Act lies at the heart of this matter, however pleaded, has never been doubted… I thus have considerable difficulty in understanding how this appeal can be determined in this Court without interpreting the Act. Whether the Act applies to leases in general is a matter of law. So is the question whether the cancellation.”

Moreover, justice Froneman also dispensed with the deeply conservative and formalistic argument about the distinction between morals and value judgments on the one hand and legal questions on the other:

It is common cause that section 26 of the Constitution is implicated. Interpretation of what constitutes an “unfair practice” under the Act in light of this is thus inevitably a constitutional issue, a matter of law. Interpretation and application of the law under the Constitution is never a mechanical application of rules; it always involves a value judgment. Our Constitution and law are infused with moral values. The days of denying the value-laden content of law are long gone.

The various judgments therefore illustrate a clear distinction between one set of judges who are engaged with the transformative project and with the transformation of legal culture and the interpretation and application of law (all done while displaying suitable respect for the elected branches of government who passed the Rental Housing Act) and another set of judges stuck in a colonial-inspired formalist mindset (with potentially adverse consequences for disempowered tenants) who rejected the notion that constitutional values and the morals underpinning them, have any role to play in the adjudicating process in this case.

For those of us studying court judgments and legal articles produced by a (still largely) conservative academia, this insight will perhaps not come as a surprise. The surprising aspect of the judgement arise from discovering which judges came out on which side of this profoundly important judicial and philosophical divide.

The situation is exacerbated by the failure of local, provincial and national governments to deal with this issue effectively and humanely and by officials whose elitist or extremely statist attitudes towards the poor and the homeless lead to often heartless and cynical attempts to force those who occupy land unlawfully to go and live elsewhere — anywhere — as long as it is “not-in-our-backyard”.

Yesterday, in Pheku and Others v Ekurhuleni Metropolitan Municipality (in a judgment authored by Justice Bess Nkabinde) the Constitutional Court once again came to the assistance of such a community. The Occupiers of Bapsfontein Informal Settlement had approached the court to challenge a High Court decision which found that where a Municipality declared an informal settlement a “disaster area” in terms of the Disaster Management Act it was permissible forcibly to relocate the residents of such an area and to demolish their homes. (Many years ago – during the apartheid era – Bapsfontein was infamous for hosting whites-only country dances in the hall depicted below. Country and Western singer Lance James regularly performed at these dances.)

The Bapsfontein informal occupiers had built their structures on land prone to develop “sinkholes”. They were then told that they would be “temporary moved” from this site, that their houses would be demolished and that no court order was required to do so as this action was taken in terms of the Disaster Management Act. The Municipality argued that such a “temporary move” was not an eviction at all. The Bapsfonetin residents were then forcibly removed from the area and their homes were then demolished. (So much for the care and compassion which the Ekurhuleni Municipality was required to show towards the informal occupiers and for the claim by the ANC politicians in that area that they always represent the best interests of the poor. These people might just as well have lived in a DA controlled municipality.)

The Court noted that section 55(2)(d) of the Disaster Management Act provides that evacuation is limited to cases where temporary action is necessary for the preservation of life and that this section had to be interpreted narrowly to ensure that it conformed to section 26 of the Constitution. Section 26(3) of the Constitution states that:

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.  No legislation may permit arbitrary evictions.

The Court found that properly construed, section 55(2)(d) does not authorise eviction or demolition without an order of court. It pointed out that on its wording, the Act deals with “evacuation”.  The word “evacuate” is generally used to describe what is done in a situation where people’s lives are at risk as a result of impending “disaster”.  “Evacuate” means to “remove from a place of danger to a safer place.”  The section could only be invoked where the people concerned required immediate removal to a safe temporary shelter, away from the disaster area, in order to preserve their lives.

If one reads this section carefully it had to mean that the Act ordinarily applies only to temporary removal from a disaster stricken area to a temporary shelter. It implies that those evacuated may return to their homes, if possible. This was not the case here where the Bapsfonetin Informal Occupiers were going to be removed permanently. Evacuation is not the equivalent of eviction, much less of a demolition. On the Municipality’s own admission, no purpose would have been served by removing the applicants without demolishing their homes because they would otherwise have returned to Bapsfontein. Evidently, this is not what section 55(2)(d) sanctions.

What was required was to demonstrate that there was urgency in the evacuation and that this was done in order to save lives. However, as the Constitutional Court pointed out, the facts do not suggest that there was any need for an urgent evacuation of the Bapsfontein community at all, and although the court did not say so, this suggests that the Municipality had used the sinkhole excuse to justify an eviction without obtaining a court order as required by the Constitution.

Conversely, the history of this matter shows that the Municipality never regarded the relocation of the applicants to be urgent to warrant drastic measures of unauthorised removal and demolition of shelters. This is fortified by the fact that Bapsfontein was identified as a hazardous area as early as 1986; its first sinkhole was identified in 2004; the first commissioned report was delivered in June 2005 and the second report in September 2005; no action was taken in response to these reports for four years after they were delivered, until 2009, when another report was commissioned and delivered; and only in 2010 did the Municipality finally start taking action to relocate the residents from Bapsfontein. An evacuation does not entail the demolition of peoples’ homes or an indefinite removal. The DMA does not seek to achieve this. If the purpose of the DMA were to authorise demolition and eviction without an order of court, it would have said so.  It does not.  The forcible removal of the applicants amounts to an eviction, an indefinite removal from Bapsfontein.  The deprivation is, in the circumstances, inimical to the right in section 26(3).

The High Court had therefore erred in dismissing the application for an urgent interdict preventing the eviction of the residents and the demolition of their homes as it had failed to consider the relevant circumstances. These include whether: (a) the disaster was sudden to warrant the hasty relocation; (b) Bapsfontein could be rehabilitated; (c) the Municipality had established disaster management and relocation plans and strategies as well as their implementation; (d) there was loss of life or an imminent threat to life; (e) alternative land has been made available or could reasonably be made available; and (f) the applicants are long term occupiers in Bapsfontein.

The High Court instead approached the matter on the assumption that the Disaster Management Ac was applicable and urgent removal was necessary. In the absence of evidence, the Court compared the situation of the applicants with that of people faced with sudden emergency but failed to assess whether the circumstances warranted evacuation under the Act.

In the light of the finding that the removal of the Bapsfontein Informal Occupiers and the demolition of their homes were unlawful, the Court found that the Municipality has an obligation to provide them with suitable temporary accommodation. To this end, the Municipality was ordered to identify land in the immediate vicinity of Bapsfontein for the relocation of those who had been evicted. The Municipality was also ordered to engage meaningfully with them on the identification of the land.

Furthermore, the Municipality was ordered to ensure that the amenities provided to those evicted and people resettled in terms of the court’s order are no less than the amenities and basic services provided to them as a result of the relocation of March 2011. Because these orders were quite far reaching the Constitutional Court issued what is known as a structural interdict. This happens where the Court feels that it was necessary to retain supervision over the implementation of the order to ensure that it was complied with.

The Municipality was therefore required to file a report in the Constitutional Court confirmed on affidavit by no later than 1 December 2012 regarding steps taken in compliance with the order issued by the court. The applicants would then have the right, within 15 days of the filing of the Municipality’s report, to lodge affidavits in response to the report.

This order would ensure that the Municipality implements the order of the court properly and would protect the vulnerable and marginalised applicants from exploitation and abuse.  Although the Municipality might feel aggrieved by this order, it was clearly necessary in order to protect the poor and homeless. And once again — without even having to wait for an assessment of the work done by the Constitutional Court, the cabinet has been provided with a rather graphic illustration of the way in which the Constitutional Court stands up for the poor and how its judgments protect the poor from the exploitation and heartless decision of the ANC-led Municipality.

Ramatlhodi’s arguments are clearly self-serving, and reinforce a trend in the ANC’s behaviour to attack fundamental rights and freedoms. But aspects of his argument ring true, and the standard constitutionalist argument made by the likes of de Vos are inadequate to the task of responding to these criticisms. The contradictions of the type of transition that South Africa chose led to a constitution that is not nearly as transformative as they make like to think. In fact, in certain respects, the Constitution is a profoundly conservative document.

She correctly points out that the South African Constitution is a negotiated document that embodies compromise and that the Constitutional Assembly (who drafted the 1996 Constitution) was bound by 34 constitutional principles which were negotiated by an undemocratic and unelected body at CODESA. She claims that the manner in which the Constitution’s parameters were developed has limited the democratic form and content of South Africa’s constitutional order and notes that:

A clause was also inserted guaranteeing the right to property, where property may only be expropriated for a public purpose and in the public interest, and subject to compensation. So in a cruel twist of fate, the ANC government took on the responsibility of paying for the property that black people had been historically dispossessed of by the white minority. The consequences of this concession to the white minority are starkly apparent. Property relations have remained largely untransformed and land redistribution through the ‘willing buyer, willing seller’ mechanism has been largely a failure. The socio-economic rights regime in the Constitution is not geared towards changing these structural problems.

The arguments presented by Prof Duncan are, in my view, based on a misconception about the nature of the South African Constitution. As I see it, there are at least two problems with the argument presented by Prof Duncan. First, she seems to suggest that the Constitution is somehow at least partly to blame for the fact that the ANC government has not shown any appetite for revisiting the back room deals about the structure of the South African economy – deals reached between the ANC and white capital before the first democratic election in 1994. This ignores the fact that the ANC government has not effected radical change because the new political elite is benefiting just as much from this pre-1994 deal as those white capitalists who struck the deal with them.

Second, she fails to point to those provisions of the Constitution that supposedly give it the profoundly conservative character that she talks about. It is also not clear what aspects of the Constitution she is referring to when she argues that the document has limited the democratic form and content of the South African constitutional order. The only constitutional provision mentioned in the article is the property clause, which she seems to think requires the state to follow a willing buyer willing seller approach to land reform — something the property clause decidedly does not do.

It seems to me Prof Duncan is partly blaming the Constitution for the failures by the ANC government to address the fundamental structural inequalities in our economy — although, to be fair, she does admit that the ANC government should also carry some blame for these failures.

Of course, it must be conceded that the Constitution does contain a property clause which requires just and equitable compensation to be paid to anyone whose property is expropriated to address past land dispossession and to effect land reform. Just and equitable compensation does NOT, however, require the state to follow a willing buyer willing seller policy. That policy was a deliberate policy choice of the ANC government not demanded by the Constitution. Moreover, the Constitution states that the price to be paid must reflect an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including:

•  the current use of the property;
• the history of the acquisition and use of the property;
• the market value of the property;
• the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
• the purpose of the expropriation.

A far more radical land reform programme which would allow for the expropriation of unproductive land and would specifically target land which formed the subject of forced removals over the last 50 years of apartheid, while taking into account the need for South Africa to maintain food security, would be admissible in terms of our Constitution. It is not the fault of the property clause that this has not happened.

Although the state is required to pay compensation for all expropriated land, this compensation does not have to equate to the market value of the property and can be far below the market value, depending on the other relevant factors. The fact is that the land reform programme has been a dismal failure so far because the government has stuck to the absurd willing buyer willing seller policy and because it has failed to put structures and mechanism in place to ensure that those who benefit from land redistribution are assisted either to work the land productively or to make sustainable use of the property in some other way.

One of the major arguments used by the left against a constitutional order in which the Constitution is supreme and in which a Bill of Rights is enshrined to protect the rights of everyone, is that it leaves untouched the private wealth and power of those whose actions often far more decisively affect the lives of the unemployed and the working poor. In such a system, so the argument goes, radical structural transformation of the social and economic system is impossible because private wealth and power is protected by the Bill of Rights, but private institutions and individuals who wield this enormous power has no obligation in terms of that Bill of Rights to respect the rights of the marginal, the vulnerable and the poor.

The South African Constitution is different, as it contains some radical provisions that acknowledge the fact that private power is a major stumbling block in transforming the economy and in creating a more egalitarian society. Thus, many of the provisions of the Bill of Rights also apply to private institutions (companies like De Beers; Old Mutual; Anglo-American; SA Breweries and those owned by Patrice Motsepe) and individuals, while section 39(2) imposes an obligation on the courts to develop the common law and customary law and to interpret legislation to bring it in line with the spirit purport and objects of the Bill of Rights. Often private law rules benefit the powerful by assuming that they are engaging with the less powerful in society on equal terms. Our Constitution commands the judiciary to develop private law rules to take account of this (something, admittedly, that many judges — also those appointed as so called “transformation judges” appointed by the ANC dominated JSC — are often reluctant to do).

And the spirit, purport and objects of the Bill of Rights are fundamentally democratic and transformative. It places a positive duty on the state to take steps that would “achieve equality” (making use of racially based redress measures in appropriate circumstances); that would provide more people progressively with better access to housing, health care, social services, water and electricity; and that would protect the environment. It also places a duty on the state to provide anyone with basic education and to do so in an equitable manner (as the right to education must be read in conjunction with the right to equality).

The fact that the government of the day decided to leave the schooling system largely untouched, retaining pockets of excellence in suburban schools, while not addressing (or only addressing around the margins) the poor schooling received by learners in many township schools, was a policy choice not mandated by the Constitution. In fact, an argument could be made that a proper legal challenge might well result in a finding that the present schooling system (a system which benefits the children of the old and new elites, including the children of Cabinet Ministers) and the way it is being funded is unconstitutional.

One of my students is doing fascinating research on the manner in which teachers are funded by the Department of Education and has concluded that the funding model used by the Department is deeply flawed. This is because it has had the effect of ensuring that better performing and better qualified teachers remain in the suburban schools where they teach the children of the old and new elite, all while a majority of South African children receive a substandard education from often badly trained and unmotivated teachers. The Constitution may well be invoked to challenge this system and it definitely will not stand in the way of a radical overhaul of the system — just as it will not stand in the way of the introduction of a National Health Insurance scheme.

It must be conceded that the Constitution may be faulted for adopting an electoral system that bestows far too much power on political party leaders and bureaucrats and far too little power on ordinary citizens, allowing for an often arrogant and technocratic approach to governance encapsulated by the discourse of “service delivery”. Given the racialised nature of support for political parties, the (now slightly fading) moral authority of the governing party, the centralising and sometimes almost Stalinist tendencies of some factions within the ruling party, and the dominance of a discourse which endorses the need for a strong and less than fully democratic state (purportedly to better effect social and economic change in South Africa), it is not clear, however, that another electoral system would have really led to the kind of grassroots democracy that many of us yearn for.

The Constitutional Court has not been unaware of these problems and have developed interesting legal avenues to try and enhance the democratic nature of the way we are governed. In social and economic rights cases the court has stated that for the government to act reasonably (and hence constitutionally) when it take steps to realise the social and economic rights contained in the Constitution, it has a constitutional duty meaningfully to engage with the affected communities — the so called beneficiaries of “Service delivery” and “development”. (This failure to consult with the community affected by an attempt at “development” was one of the reasons why the Cape High Court found that the City of Cape Town had acted unconstitutionally when it built open toilets for the residents of Makhaza.)

Of course, I am not arguing that the Constitution can or will be used in order to fully and decisively address the structural social and economic inequalities in our society. The state is supposed to do that — within the disciplining boundaries of the Constitution. The Constitution can be used by social movements and political activists as well as lawyers to prod the state along and to force the state to act in a less technocratic and heartless manner or to engage in a far more democratic manner with citizens when it does so. There are limits to what the law and our courts can be expected to achieve.

But to argue that the Constitution is deeply conservative and hence that even if the ANC government wanted to it would not have been able to implement radical policies to begin to address the social and economic inequalities in our society  because of constraints placed on it by the Constitution, seems to me to over egg the pudding just slightly.

Many people continue to live in informal settlements (in shacks that are often flooded and are bitterly cold in winter) and many go to bed hungry. Many cannot afford the pay-as-you-go water and electricity services ostensibly provided to them by the state – if these services are provided to them at all – while many others receive substandard health care and are forced to send their children to dysfunctional schools where teachers are often not in class to teach and where children may well have no access to libraries, laboratories or sufficient computer facilities.

Of course, if one happens to be an ANC leader – inside or outside of government – or if one is one of the captains of industry (who became rich by exploiting black workers during the apartheid era and remain rich today by donating money to the ANC), one would probably not directly be affected by this reality. After all, one will be driving around in a car (who was paid for by tax money that could have fed a starving child) costing more than a million Rand (that is, when one is not renting a fancy car for hundreds of thousands of Rand a year), or one will be living in the Mount Nelson Hotel (if one is not living in a R8 million house provided by the state). Just yesterday it was reported that the state had forked out R183 million on brand new mansions to house cabinet ministers, money that could have been used to house around 2,000 poor families.

It is against this background that one should read the bizarrely immoral opinion article (penned by Ngoako Ramatlhodi, ANC NEC member, chairperson of the ANC National Elections Committee and Deputy Minister of Correctional Services) and published in The Times today.  Mr Ramatlhodi probably knows that the credibility of the ANC and the government it leads is being eroded by lavish and wasteful spending on the perks of party leaders and by the constant revelations of government corruption in our media and by the Public Protector. 

It is therefore not surprising that he is now using the South African Constitution and our indpendent constitutional institutions as scapegoats to try and divert attention from the failures of the government. Our government is failing to address the most basic needs of the poor while government and party leaders live lavish lifestyles at the expense of taxpayers and of the poor, whose lives could have been improved by the money wasted on extravagant perks and the millionaire lifestyles of ANC leaders.

According to Mr Ramatlhodi the Constitution is deeply flawed because while it bestows political power on the ANC (who by virtue of divine intervention will always represent the interests of all black South Africans even when its leaders steal from the very masses it claims to represent and when these leaders misuse funds – earmarked to address the social and economic inequality in our society - to satisfy their own venal and selfish needs), it also supposedly ”immigrates” substantial power away from the legislature and the executive and vests it in the judiciary, Chapter 9 institutions and civil society movements. He bemoans the fact that the ANC ”embraced what one calls the emptying of the state” and then continues:

Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions. We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change.

Thus the Constitution - interpreted and applied by the judiciary, and Chapter 9 bodies such as the Public Protector - as well as civil society groups fighting for real transformation of our society have been allowed to rob the ANC of its power to govern the country through the legislature and the executive, blocking the “fundamental change” required to turn South Africa into a true kleptocracy. (Ok, I paraphrase the honourable Deputy Minister’s words slightly, but pardon me for interpreting this opinion piece as arguing for more power for the ANC to act in the interest of its leaders without having to account to anyone for how it spends and wastes our money for the benefit of the few.)  

Mr Ramatlhodi is also upset that people challenge unlawful and unconstitutional actions of the government in our courts and that they dare to take part in democratic debates by expressing views with the aim of trying to influence public opinion for the better of society. God forbid that democracy should actually lead to a situation in which the majority of South Africans might disagree with something the governing party – with its divine right to rule - might have said or done. The ANC can surely not allow democracy actually to, well, work. What would become of the cars, the houses, the tenders, the champagne, the whiskey, the farms, the trips to visit drug-dealing girlfriends in Swiss jails?

The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of “public opinion”.

These views are not only uninformed and demonstrably wrong; they are also callous and dangerous. Blaming the Constitution, the courts and chapter 9 institutions for the failures of the government sufficiently to change the lives of ordinary citizens who suffered under apartheid is like a man blaming an umbrella for making him wet or a white South African blaming black citizens for apartheid. 

First, it is based on the assumption that the government of the day – who currently happens to be led by the ANC – should have a free hand to do what it likes because any check on the exercise of power of the legislature and the executive would turn these branches of government into ineffectual and impotent institution. This is of course nonsense, as the majority party in Parliament can pass any law it wishes – as long as it does not infringe on the rights of the very citizens who vote for it.

Second, it assumes that a majority party will always have the best interest of the country and its people at heart, that it will never act in a selfish or corrupt manner and that it must always be trusted to respect the rights of everyone and to act in a manner that will advance the interests of those who most rely on the state for their survival and well-being. This is a truly bizarre view as governments are formed by people – and not ordinary people but politicians whose job it is to amass power and to act in their own interest while pretending to serve the public - who are not superhuman and will not act like angels unless they are forced to. 

Lastly, this assumes that the ANC government actually always acts in the interests of the poor and the marginalised – even when it spends R183 million on new houses for a few cabinet Ministers, when cabinet Ministers stay at the Mount Nelson Hotel at taxpayers’ expense, when its officials enter dubious and probably corrupt leases with well-connected businessmen and waste billions of Rand in the process, money that could have been spent on really making a difference to the lives of those South Africans who are unemployed and depend on the state for its survival and well-being.

The view of the courts expressed in the Ramatlhodi piece is also either shockingly uninformed or deliberately misleading, which is, I guess, understandable as one needs to manufacture an enemy when one is losing the trust of the electorate because one is so obviously acting in a selfish and venal manner to line one’s own pockets to enable one to live a life of luxury at the expense of the poor. If Mr Ramatlhodi had read only a few judgments of the Constitutional Court, he would have known that our highest court – far more than the legislature and the executive – has been acting as a champion of transformation and of the interests of the poor.

If it was not for that court, the government would not have been forced to provide anti-retroviral drugs to poor, mostly black, pregnant women, thus saving the lives of hundreds of thousands of (mostly black) babies – all while people like Mr Ramatlhodi kept criminally silent. How many hundreds of thousands of babies died as a result of this communal silence, Mr Ramatlhodi? He would have known that thousands of people have been protected from unlawful eviction through the intervention of that court.

He would have known that the Constitutional Court has enthusiastically endorsed affirmative action and land reform and has taken the ANC government to task for not doing anything to scrap some of the most scandalous pieces of racist apartheid era legislation. One wonders whether this oversight might have been caused by the fact that leaders were too busy to benefit from tenders and to wine and dine their friends at taxpayer’s expense at the Mount Nelson Hotel or at their government provided mansions to actually care enough to table changes to the oppressive apartheid laws in our democratic Parliament. 

He would have known that the Constitutional Court declared invalid sections of the truly shockingly named KwaZulu-Natal Slums Act adopted by the ANC government in that province because that Act tried to punish the landless or homeless poor for being landless or homeless (which is understandable, I guess, because a person like Mr Ramatlhodi would probably not want to be reminded of the landless and the homeless when he is sipping champagne in his R8 million government provided house).

He would also have known – just to be fair – that sometimes the Constitutional Court has not been as progressive in its judgments as some of us would have liked but that this have almost always been when it has endorsed government policies or pieces of legislation that are anti-poor, anti-women or anti- the marginalised and the vulnerable. Thus it found that it was ok for the government to cut off the electricity of destitute people and for the government to have pay-as-you-go electricity meters installed in the homes of Joburg residents – even if this was only done in poor areas where black South Africans live and not in rich areas where the ANC leaders and white people live.

It also found constitutionally valid a law which basically left destitute a women who had looked after her partner for more than ten years because that law only required the estate of a deceased partner to support a women if she had been legally married to her partner. That the ANC of Mr Ramatlhodi would support such a law is probably not surprising, seeing that the ANC President has now nominated a man for Chief Justice who has made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child (in the case of S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007) about the “shortcomings” in the victim’s evidence:

She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant….

One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.

So, while Mr Ramatlhodi believes we should entrust our legislature and executive with unlimited powers, I do not: not this government, not a DA government not ANY government anywhere in the world. Down that road lies tyranny and oppression of the worst kind. As the ANC government of which Mr Ramatlhodi is a member has demonstrated over and over again, even where the power of a government is limited and even where the Constitution exhorts it to address the needs of the poor and vulnerable, it often acts in the interests of its own members and not that of the broader public whose interests it claims to serve.

Whether the ANC is in power or anyone else is in power, we need the very institutions that Mr Ramatlhodi attacks. These institutions – created by our Constitution – protect us from the government of the day, no matter which party might serve in government.  This is true in South Africa as it is true in the United States, France, India or Nigeria. If  it was not for institutions like our courts – interpreting and enforcing the progressive provisions of our constitution – and of the Public Protector – exposing the scandalous corruption of Ministers and of government officials - how far away would we have been from Muammar Gaddafi’s Libya?

The “opinion” of Mr Ramatlhodi is no more than an argument in favour of an autocratic kleptocracy in which a few well-connected party leaders and businessmen would live an obscenely opulent life, while the rest of us wouldl try to survive in a world that would be nasty, brutish and probably far too short.  

In a country like South Africa, there are far less pressure on politicians to act in a principled, honest and consistent manner.

Unlike Constitutional Court judges, who are constrained – at least to some degree - by the text of the Constitution and by the legal precedent established by a long line of judgments, politicians do not have to be consistent, particularly honest or principled. As long as they achieve their short term goals – which usually entails, on the one hand, avoiding humiliation and avoiding being exposed as charlatans or crooks and, on the other hand, advancing their careers to climb the greasy poll - they have a relatively free hand to say and do anything that the voting public will let them get away with.

Thus, a politician like Helen Zille could effortlessly lambast ANC leaders for launching a scathing and unwarranted personal attack on the judges of the Constitutional Court, only to launch a scathing and unwarranted personal attack on a judge of the Cape High Court a few months later. Those who support her party almost all staunchly defended her – regardless of the principles involved – just as many of those who defended Jacob Zuma during his legal troubles did so – regardless of the facts.

But sometimes even politicians get caught out and then the ensuing spectacle presents such a bizarre and macabre contrast between what the politician used to say and do and what he or she now says or does, that the politician runs the risk of completely losing any credibility – even with the very gullible voting public who might once have defended the politician regardless of the facts.

Recall that after Schabir Shaik was convicted of bribing Jacob Zuma and then President Thabo Mbeki removed Zuma as Deputy President of the country in anticipation of him being charged with fraud and corruption, Zuma skilfully exploited his image as a victim. Zuma subtly encouraged his supporters to defend him and to attack his “enemies”, especially Mbeki. This Cosatu, the SACP and the ANC Youth League and their supporters did with little care for the consequences of their actions or any appeal to reason or principle.

Thus Mbeki was vilified and branded as a snake, and ANC T-shirts with his face on it was burnt by Zuma supporters who claimed that they would die for their leader – no matter whether he was corrupt and no matter what he might or might not have done with that baby oil in that room with the young daughter of an old and dear comrade friend. Cosatu, the SACP and the ANC Youth League all rallied behind Zuma because they had the short term goal of getting rid of Mbeki to unite them.

Very few of these politicians paused to ask whether Zuma might not have a case to answer in court – given the fact that Shaik had already been convicted of bribing him. They did not ask whether Zuma would make a good President of the ANC and the country. They did not really explore questions about President Zuma’s values and never stopped to ask whether – as supposedly principled and progressive organisations – they should support a leader who seemed to be rather surprisingly patriarchal and conservative in his views.

One would therefore be excused if one had a bit of a schadenfreugasm – to use a phrase popularised by Jon Stewart’s Daily Show – about the events today outside Luthuli House. While ANC Youth League President Julius Malema was facing disciplinary charges inside ANC headquarters, outside some of his supporters were pelting police and journalists with bricks, burning ANC T-shirts with the image of President Jacob Zuma and chanting slogans about how they would kill for Malema. How ironic that ANC Secretary General Gwede Mantashe, who blindly supported Zuma, today issued a statement condemning the behaviour of ANC Youth League supporters, conveniently forgetting the behaviour of the crowds outside the court when Zuma was charged with rape and when he made appearances during his many court battles with the Scorpions

Of course, many reasons could be advanced for the embarrassing but not unfamiliar display outside ANC headquarters today: the fact that Malema’s message of nationalisation resonates with some unemployed youth, that Malema is a role model for people looking at his flashy success, that the ANC leadership had encouraged this populism with their own behaviour, as well as any number of other explanations could be offered. But as I am not a professional political analyst I am far from sure that anything I could say on this topic would be of much interest or would show any special insight.

The point I would like to make is perhaps more mundane. If we had lived in a more normal society - a society not haunted by the lingering ghosts of our apartheid past - the bizarre events of today, which harks back to the events that led up to the ANC’s Polokwane conference and then to the dropping of criminal charges against President Zuma, might not have happened. If we had lived in a better functioning constitutional democracy, one in which the gap between rich and poor were not so vast and so obscene and in which conspicuous consumption by those with old and new money alike were not celebrated and held up as the ideal, it might have been more likely that reason, debate and sober reflection - instead of illogical rage – would have dominated the public discourse.

If we had lived in a more normal society, reason and logic might have had a better chance of being the dominant mode of doing politics. In such a democracy, leaders and ordinary citizens would have been required to be far more rigorous in justifying their decisions and would have more quickly been called to account if they failed to justify their words and actions in a credible manner. Politicians would at least have had to pretend to have principles, intellectual prowess and integrity (although, granted, in the UK of “New Labour”, Tony Blair – who was very good at pretending - turned out to be a disastrous leader). Most voters would have been shamed into opposing leaders who so clearly did not have the best interest of the poor at heart and were possibly corrupt.

But today’s events remind us that we do not live in an ordinary or normal country. We live in a country where some people (politicians and the old business elite among them) eat sushi from the bodies of semi-naked models; are protected by bodyguards and high walls from the young men and women who have no money, no jobs and little to lose; a country where some people travel across the world in first class and throw lavish parties, while the majority of South Africans languish in poverty and do not have the life chances to make meaningful decisions about their own lives.

Railing against Julius Malema and his supporters and calling them thugs and rioters will not change this basic fact – just like railing against Jacob Zuma during his battle with Thabo Mbeki had little effect. Unless we do something to address this bizarre and immoral state of affairs so many of us often seem to take for granted, everything that Mr Malema and his supporters represent will not disappear. That is one reason I support a wealth tax and why those who rail against the idea – just like they rail against Malema and his supporters – do not seem to me to have the best interests of South Africa and all who live in it at heart.

According to the report, the national average performance in grade 3 for literacy was 35%, and 28% for numeracy.  The Western Cape scored the highest with 43% for literacy and 36% for numeracy. Mpumalanga came last with pupils scoring an average 27% and 19% respectively.

Does this mean that our government is in breach of its constitutional duty – guaranteed in section 29(1)(a) of the Constitution – to provide everyone with at least basic education?

As I pointed out before, the Constitutional Court has not yet had the opportunity to provide a definitive interpretation of the scope and content of the obligations placed on the state by section 29(1)(a). However, in Governing Body of the Juma Musjid Primary School and Others v Essay and Others the Constitutional Court – in a judgment handed down earlier this year and authored by Justice Bess Nkabinde – discussed the content of this right in the context of an application to evict a public school conducted on private property.

Justice Nkabinde pointed out that the right to “a basic education” under section 29(1)(a) – unlike some of the other socio-economic rights – “is immediately realisable” as there is no internal limitation requiring that the right be “progressively realised” within “available resources” subject to “reasonable legislative measures”.  The right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

But what are the obligations of the state to ensure that it provides basic education immediately to everyone? Because this case dealt with the eviction of a school from private property and not with the question of whether the unequal provision of often substandard education breached section 29(1)(a), the Constitutional Court did not expressly answer this question. However, it did make the following pertinent remarks about the right to education:

The significance of education, in particular basic education for individual and societal development in our democratic dispensation in the light of the legacy of apartheid, cannot be overlooked. The inadequacy of schooling facilities, particularly for many blacks was entrenched by the formal institution of apartheid, after 1948, when segregation even in education and schools in South Africa was codified. Today, the lasting effects of the educational segregation of apartheid are discernible in the systemic problems of inadequate facilities and the discrepancy in the level of basic education for the majority of learners….

Indeed, basic education is an important socio-economic right directed, among other things, at promoting and developing a child’s personality, talents and mental and physical abilities to his or her fullest potential. Basic education also provides a foundation for a child’s lifetime learning and work opportunities. To this end, access to school – an important component of the right to a basic education guaranteed to everyone by section 29(1)(a) of the Constitution – is a necessary condition for the achievement of this right.

As I read it, this passage reminds us that the provision of basic education to all is closely linked to the protection of the human dignity of every child. Children who are not provided with a basic minimum standard of education will probably never reach their full potential and will not have the opportunities provided to those children who were provided with access to basic education in better resourced and functioning schools.

This right – so it seems to me – becomes more potent when it is linked to the right to equality and non-discrimination (guaranteed in section 9 of the Constitution), which our courts have argued is also closely linked to the protection of the human dignity of all. Where the state provides shockingly unequal education to children and when this inequality is largely based on the race of the children, the state may well be failing to meet its commitments in terms of section 29(1), read with the obligations imposed by section 9 of the Bill of Rights.

Maybe the time has come to approach the Constitutional Court to challenge the failure of the state to take adequate measures that will begin to address the vastly unqequal education experience of children in South Africa.

As the Constitutional Court pointed out, the Minister of Basic Education and the various MEC’s of basic education have “a positive obligation in terms of the Constitution to ‘respect, protect, promote and fulfill the rights in the Bill of Rights’”.” Where it can be demonstrated that the Minister or MEC’s had not taken decisive steps to address the inequality in our education system and may have been at best indifferent to the problem and at worst may have made the situation worse, a breach of the Constitution would surely be found to have occurred.

In the Juma Masjid case, the Constitutional Court found that the MEC for basic education had not complied with these constitutional obligations as she had failed to pay the private landowners on which the school was situated  the arrear rentals and maintenance expenses incurred by those owners. In the affidavit before the High Court in this case, the MEC pointed out that she is acutely aware of the state’s constitutional obligations and undertook to pay all outstanding rentals and any amount payable in respect of expenditure incurred in maintaining the building, provided that certain legal requirements were met. As Justice Nkabinde remarked – perhaps in exasperation – “[t]hese undertakings came to naught”.

The Constitutional Court also pointed out that the authorities had a constitutional duty to place relevant evidence, including a plan setting out the details of how she was going to provide alternative education to the affected learners, before the Court, something she had failed to do. The Court endorsed the view expressed by the judge in the High Court judgment that:

It is unacceptable for the State to fail to put up relevant information and more importantly to take steps to comply with its constitutional obligations where a dispute pertains to the relevant State department’s performance of its constitutional mandate.  Much time and effort has been wasted due to, it seems, the [MEC’s] failure to deal decisively with the issue of the continued occupation by the school of the property on terms mutually acceptable . . . .  If the parties could not agree on mutually acceptable terms, then the [Department] should have taken steps a long time ago to make alternative arrangements, but to at least deal with the issue.  If that was done in accordance with the provisions of the Act with proper regard to the department’s constitutional mandate, then the need for the present application would probably never have arisen.

The Constitutional Court therefore found that the MEC was in breach of her constitutional duties.

In the light of the shocking results of the assessment report, the Minister and MEC’s surely have a duty to explain what steps are being taken to improve the situation in order to address the unconstitutional inequality in the provision of education to our children. More pertinently, the Minister and MEC’s have to explain what the department is doing to address the vast disparities in the standard of education of mostly white suburban kids and mostly black township and rural kids. What plans are in place and how are they being implemented?

Are steps being taken to lure better qualified and better paid teachers to these schools and if not why not? Are steps being taken to improve the qualifications and the performance of underqualified and underperforming teachers and if not why not? Why are there still 900 schools without toilets? Why do many children – usually in the poorest parts of the country – often do not have access to textbooks?

It would be revealing to see whether the assessment report indicates which schools and which areas have the best and the worst literacy and numeracy results? I would bet that the schools serving the poorest sections of the community, schools with the worst infrastructure and the worst paid teachers, and schools with governance problems and lack of leadership, would probably have produced the worst results. The question is what is going to be done to address this. Mere hand-wringing will no longer do. While it has much to answer for, merely passing the buck by blaming Sadtu, will also not suffice.

Surely we cannot continue with the present system where most white kids and those black kids whose parents can afford the school fees get a relatively decent education while the poorest kids get an education that is so inadequate that it would not meet the minimum requirements for the provision of basic education? Perhaps it is time for civil society to begin gathering evidence about these failures, to begin a campaign to mobilise parents and children in support of equal education and to put pressure on the government with threats of constitutional litigation and – as a last resort – actual constitutional litigation.

The NGO Equal Education seems to be doing good work in this regard, but it seems to me it needs to begin thinking of launching constitutional litigation as part of its mobilisation effort to ensure that all children in South Africa get access to at least basic education. Courts cannot fix our education system. But we have seen that threats of litigation and actual litigation can spur on the lethargic politicians and bureaucrats to do what they are constitutionally obliged to do.

I will gladly donate some of my time to help work on such a case. To the barricades and to the courts, I say!

To achieve this kind of “transformation”, our Parliament has adopted the Promotion of Equality and Prevention of Unfair Discrimination Act, Extension of Security of Tenure Act, Restitution of Land Rights Act, Employment Equity Act, National Empowerment Fund Act, Preferential Procurement Policy Framework Act, Minerals and Petroleum Development Act and Broad Based Black Economic Empowerment Act.

These Acts have played a pivotal part in changing the legal landscape in order to begin to correct the effects of the injustices of the apartheid past. If the government had not adopted these laws, the unacceptable and unjust status quo (with white South Africans dominating all aspects of South Africa’s economic life) would hardly have been altered, despite the advent of democracy more than 17 years ago.

Despite the important and laudable goals that form the core of the government’s “transformation” policy, there is a dirty little secret underlying it: the policy has been devised by the new elite to advance their own interests and the interests of the growing middle class, the interests of unionised teachers, police officers, civil servants, and the interests other members of influential political pressure groups. For some inexplicable reason our government has been far less concerned about adopting and implementing policies and programmes that would address the structural inequality and poverty in our society.

Instead, our government has chosen to broaden the network of social grants to ensure that large numbers of destitute and poor South Africans do not starve. Unless one is truly heartless or inherently racist, one would be hard pressed not to support this programme of social assistance. But this does not mean that one should not question the fact that our government has failed to deal decisively and energetically with the structural problems that keep about 40% of South Africans in more or less perpetual poverty. Could it be that selfishness and an inherent lack of respect for the dignity of the poor is to blame for this unacceptable state of affairs?

Nothing illustrates this point better than the failure of the state to improve the education opportunities of the poorest members of our society. In a report published in May by the Department of Basic Education, it is revealed that about 3,500 public schools in South Africa still have no electricity while 2,402 have no water supply. Worse – given the understandable outrage which followed the revelation of the provision of open toilets to poor people across South Africa – is the revelation that out of the country’s 24,793 public schools, 913 have no toilets. (These figures refer to schools that never had these facilities at all, as well as schools where infrastructure was destroyed or not properly maintained.)

The question is whether President Jacob Zuma’s administration will finally be galvanised into doing something about this scandalous state of affairs? Maybe the populist rantings of people like Julius Malema might do some good by reminding the elites and the middle class bureaucrats and state officials that unless they do something to address these problems, they might well be swept away in a destructive and disastrous wave of populism, which will find fertile ground amongst the forgotten 40% of our population who have not (and never will) benefit from the government’s BEE and employment equity policies.

The Sowetan reports that spokesperson for the Department of Basic Education, Granville Whittle, said the infrastructure backlog will be addressed through the department’s Accelerated Schools Infrastructure Delivery Initiative. The initiative aims to eradicate the 395 mud schools in the country, which are all in Eastern Cape, and provide all schools with water, electricity and sanitation by 2014. The National Treasury has allocated R700 million to the department for the 2011-2012 financial year to fund Asidi, said Whittle.

At least three questions arise. Why is this only being addressed now? Will these plans actually be implemented or will corruption and a “lack of capacity” stall the plans? Is it possible that our Constitutional Court will find that the failure of the state to address these basic infrastructural problems over the past 17 years means that it is in breach of its constitutional duty (contained in section 29 of the Bill of Rights) to provide everyone with basic education?

The Constitutional Court has not had the opportunity to deal definitively with the right to basic education guaranteed in section 29(1)(a) of the Constitution. However, in interpreting and applying section 29(2) of the Constitution (which deals with the limited right to be taught in the language of one’s choice), the Court – in the case of Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Others – made the following general remarks about our education system:

It is so that [during apartheid] white public schools were hugely better resourced than black schools. They were lavishly treated by the apartheid government. It is also true that they served and were shored up by relatively affluent white communities. On the other hand, formerly black public schools have been and by and large remain scantily resourced. They were deliberately funded stingily by the apartheid government. Also, they served in the main and were supported by relatively deprived black communities. That is why perhaps the most abiding and debilitating legacy of our past is an unequal distribution of skills and competencies acquired through education. In an unconcealed design, the Constitution ardently demands that this social unevenness be addressed by a radical transformation of society as a whole and of public education in particular.

Unlike other social and economic rights contained in the Bill of Rights, section 29(1)(a) is not qualified with reference to available resources or the need to accept that progressive access to the right can only be achieved through reasonable measures which, over time, would provide all those who need it with access to basic education. This suggests that the drafters of our Constitution accepted that education had to be prioritised to ensure that all children were provided with access to at least “basic education” immediately.

Surely one cannot be said to have access to basic education if one is forced to attend a school without any toilets, electricity or running water, while the children of the elite (including the children of Ministers and Union leaders and most beneficiaries of apartheid) attend the best state or private schools where they have access to the best paid and best qualified teachers and the most lavish facilities – including computer labs, libraries and swimming pools?

I suspect this is why the Eastern Cape Department of Education decided to settled the case regarding the existence of many mud schools in that province. Officials knew that their lack of action in the previous 17 years could not be justified and feared that our courts would hand down a devastating judgment that would require our government to prioritise the educational needs of the poorest and least well-connected among us.

The spokesperson for the Department of Education promised on the radio this morning that this time the Department was serious about addressing the problem. But none of us who work for government, belong to the chattering classes or are prominent members of a union are affected by these problems. If we have children, our children go to the better schools – not to the schools without toilets, water or electricity. I, for one, am therefore less than confident that those tasked with addressing these problems will actually be held to account and that the money allocated to improve the infrastructure at the poorest schools will all be well spent.

The Mayor of the City of Cape Town … Mr Dan Plato and second applicant, Mr Andile Lili, who purports to be a political leader and an Executive member of the African National Congress Youth League, … simply failed to rise above their political contest as opposed to their duty towards those that need to benefit the poor and vulnerable.

To me, the Makhaza toilet scandal is illustrative of a much larger problem with the attitude towards governance in South Africa. Officials and politicians – of both the ANC and the DA – tend to believe in a top-down bureaucratic style of governance which treats people not as active citizens with an inherent human dignity but as passive recipients of the largess’s of government. “We know what is best for everyone,” politicians seem to think, “and will therefore make decisions in the best interest of residents – regardless of their personal circumstances and regardless of what their needs might be.”

The City of Cape Town obviously wanted to think outside the box when it built the open toilets. But its officials seemed blissfully unaware that some people hardly have money to buy food – let alone to build enclosures for toilets. Perhaps pumped up with an ideological free-market fervour which assumes that individuals will flourish where they are given choices and opportunities, officials decided to build open toilets for all, rather than closed toilets that had to be shared. In this ideological universe, no one thought that some residents would not have the “opportunity” to enclose their toilets because they hardly had the “opportunity” to eat.

Officials never seemed to consider the possibility that some residents might not be able to enclose their toilets, which suggests a rather surprising lack of knowledge about, and empathy with, the lives of poor Capetonians. And as the judgment in this case makes clear, officials were never going to learn about the conditions under which the poorest residents live because they never really made an effort to engage in a structured and sensitive manner with all the residents.

According to Premier Helen Zille, an agreement of sorts was reached on an ad hoc and informal basis between officials and the community. There was, however, never a formal decision at executive or council level about the provision of open toilets and it seems as if the engagement process was left to officials (some of them ANC leaders) who had an own agenda and who did not do what the Constitution required of them. 

This delegation of engagement with the community to underlings and “hired help” – which suggests that there was a lack of respect for the community which the city was supposed to serve – would come back to haunt the city. Premier Zille conceded that the provision of unenclosed toilets, absent an agreement for enclosure, would be an affront to human dignity. The Court found that no proper agreement was in place and hence that the human dignity of residents had been infringed. This finding is in line with the Constitutional Court’s jurisprudence on meaningful engagement.

The Constitutional Court has, on several occasions, stated that the Constitution placed a duty on municipalities to engage meaningfully with affected people before and during any attempts to realise the social and economic rights of individuals and communities. In the case of Olivia Road Justice Yacoob stated that it was “precisely to ensure that a city is able to engage meaningfully with poor, vulnerable or illiterate people that the engagement process should preferably be managed by careful and sensitive people on its side”.

The City claimed that it had complied formally with the engagement process because it had collected “happy letters” from residents who might or might not have provided these letters because they were desperate for toilets. (The court makes no finding on this point as there is insufficient evidence about the reasons why these letters were signed.) But these “happy letters” were not sufficient to satisfy the constitutional requirement of meaningful engagement. As Erasmus J explains in his judgment:

These agreements, to be enforceable, ought to at least satisfy four minimum requirements; (i) it must be concluded with duly authorised representatives of the community; (ii) it must be concluded at meetings held with adequate notice for those representatives to get a proper mandate from their constituencies, (iii) it must be properly minuted and publicised. (iv) it must be preceded by some process of information sharing and where necessary technical support so that the community is properly assisted in concluding such an agreement. None of these requirements were met in this matter. Even if an agreement satisfies all four requirements, an agreement cannot be a vehicle through which a majority within a community approve arrangements in terms of which the fundamental rights of a vulnerable minority within that community will be violated.

At the original meeting where “agreement” was reached between officials and some members of the community, 60 people were present. These 60 people therefore in effect were allowed to make a decision that would affect the living circumstances of 6000 people. As there was no proof of who were present at the meeting, who they represented and to what extent the community supported this “agreement” it could not stand.

In any case, such an agreement cannot erase the constitutional right to dignity enjoyed by all residents. As the Court pointed out, the agreement made no provision for those who were particularly vulnerable and poor and would therefore never be able to enclose their toilets. Concluding and implementing this agreement was therefore not reasonable as required by the Constitution.

The City ought to have come to the assistance of those who, due to poverty and their particular disadvantaged socio-economic status could not afford to enclose their toilets. Also no regard was had to persons with disabilities or to issues of safety for those most vulnerable to violence in terms of the structure. The City failed to take into consideration the gender impact on women and girls both in terms of different biological needs as well as their vulnerability to higher levels of gender-based violence. All of these are to be considered as a violation of fundamental rights of human beings and cannot be waived by the agreements, as alleged here.

The judgment is also rather critical of ANC Youth League executive member Andile Lili, whose role in this saga seems to act as a metaphor for everything that is wrong with the ANC as a governing party.  Lili was one of the Community Liaison Officers who supposedly had to liaise between the community and the city. This he did not do. As Judge Erasmus pointed out: 

What has become evident is that [Lili] had a core function of promoting the interests of the Citys contractor. In fact the second applicant was being paid by the contractor and the question arises if the second applicant was indeed a community representative who was taking the communities best interests to heart. Not only was the second applicant in the pocket of the contractor but his role undermined the principle of community participation.

Lili’s role is thus described by Erasmus J - in a rather understated manner – as questionable.  After protracted negotiations the City went to Makhaza again in March 2010 in an attempt to enclose the toilets. 26 toilets were enclosed and then immediately destroyed and broken down by persons claimed to be ANCYL members. On 17 May 2010 the Mayor met with Lili and other members of the ANCYL, the ward councillor and the senior housing officials of the City. The outcome of the meeting was that construction to enclose the unenclosed toilets was to commence once again.

The construction resumed on 24 May 2010 and several toilets were enclosed until the community members once again became aggressive and demolished the structures. Once again the contractors had to leave Makhaza. The Mayor ordered that the unenclosed toilets were to be removed completely and a further 10 toilets were removed thus making the total of 65 toilets removed from Makhaza. 

Reading between the lines, it seems as if Lili was playing a double game. He was taking money from the contractors and making agreements with the city, but then reneged on these agreements, pretending to represent the interest of the community while trying to gain some political capital for the ANC out of the sorry mess and keeping those who paid him on side as well.

The judgment also found that the various pieces of legislation and provisions of the Housing Code did not provide that a city had to provide a minimum of 1 toilet for 5 households only. Cities who could afford to had to provide more and was perfectly entitled to find innovative ways to do so – as long as it engaged in a meaningful manner with the community and as long as it did not infringe on the human dignity of residents. What was required was for the city to engage meaningfully with the community and – within the available resources of the city – progressively to provide better facilities to more people in consultation with the affected community.

The consequence of this judgment is therefore not – as was claimed by the DA – that the city would now be precluded from initiating innovative solutions to benefit the community. If it engaged with the community in a meaningful manner and produced innovative solution in agreement with a community, it could proceed to implement policies that go far beyond the suggested minimum standards prescribed by legislation.

As is the case in most other municipalities run by the ANC, the big problem is that officials as well as politicians do not like the idea that it should provide better services not to passive citizens who should gratefully receive any benefits that flow from bureaucratic planning processes, but rather to active citizens with whom it should continuously engage in a sensitive and structured manner. This will have to change. And the DA as well as the ANC will have to learn that the people they serve must be given the opportunity to engage with officials and politicians in an ongoing manner – or face the legal consequences.