Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
15 March 2010

Don’t blame the Constitution

Winnie Madikizela-Mandela has denied giving an interview in which she criticised Nelson Mandela because “he negotiated a poor deal for Black people” (although she has not denied saying these words – just that she did not say them during an interview). Over at Politicsweb, Musa Xulu is perplexed that this statement has caused so much controversy. According to him the negotiated compromise which produced our 1996 Constitution sold out black people – just like Winnie  is reported to have said.

The indigenous people’s rights to land, mineral resources and everything else that was stolen from our forefathers back in 1652 when Jan Van Reebieck first sailed into our shores were trampled upon in the process. When the founding father of the ANC, one Themba Pixley kaIsaka Seme pooled all tribes together in 1912 under the slogan “MSotho, MZulu, MXhosa hlanganani” he had the complete economic emancipation of Black people in mind.

He certainly did not intend for the half hearted compromise that was achieved in Kempton Park. Under the stewardship of Chief Albert Luthuli, the ANC led a campaign called the Congress of the People through which the Freedom Charter was written in 1955.

Mr Xulu is of course correct that in the process of colonisation, black people were dispossessed of much of the land. He is also correct that much of the economic wealth in post-apartheid South Africa remains in the hands of whites (as well as, one could add, in the hands of a few well-connected black tenderpreneurs and Kebbilists). He is also correct that this is not fair as it perpetuates injustices of colonialism and apartheid.

But the question is whether our constitutional compromise should be blamed for this state of affairs. I think not. In fact, blaming the constitutional compromise is lazy and unhelpful. It might be politically beneficial to says such populist things, but it might expose one as a rather thoughtless and uninformed person. Worse, it might make people wonder about your commitment to democracy and may lead people to conclude that one supports a kind of African fascism.

First, the 1996 Constitution establishes a multi-party democratic system of government and guarantees regular elections in which all adult South Africans can vote for the party of their choice. It invests the indirectly elected President with enormous powers to appoint the heads of the security services, the NPA and the judiciary. It creates a new Constitutional Court whose members are in effect appointed by the President. In short, the “half hearted compromise” endorses the power of the majority through the creation of a powerful Parliament and Presidency who has a decisive say in the appointment of key state actors.

Unless Mr Xulu and Winnie are not real democrats, they can therefore not complain about nature of the constitutional democracy negotiated for South Africa. 

This means that they must be upset because they believe some provisions in the Constitution hampers the economic and social transformation of the country. Sadly they do not refer to the specific provisions of the Constitution they believe to be objectionable, so one is unclear whether they actually have a clue of what they are talking about or whether they are merely saying things without thinking because they want to score a few cheap points.

Well, if one wants to be generous one could try and conjure up the arguments they would have made had they been informed and had they had any knowledge of the Constitution. First they might have said that a judicially enforceable Bill of Rights hampers the achievement of justice because such a document contains an equality clause which prohibits the state from taking aggressive corrective measures to rectify the effects of past injustice. Anyone who has read section 9(2) of the Constitution (and that provision’s interpretation by the Constitutional Court) would know that this is nonsense. As our Constitution endorses substantive equality an equality clause assists, rather than hampers the achievement of social and economic transformation.

Second, they might be referring to section 25 of the Constitution, which prohibits the arbitrary deprivation of property, requires that compensation be paid when property is expropriated and gives individuals or communities who have been dispossessed of their property since 1913 the right to restitution of that property or to equivalent compensation.

Because all white individuals who are deprived of property must be compensated and because the market value of the property is one of the factors (but not the only one) to be taken into account when deciding on the compensation, this section could perhaps be said to hamper the process of correcting for the past injustices. A new government cannot steal the property from white settlers – even when that property was stolen from local inhabitants 100 or more years ago.

However, if one looks at the results of land reform and considers South Africa’s precarious position in the global economy, this line of reasoning would, however be difficult to sustain. We know that most farms that have been expropriated and returned to its original owners are not productive. We know this (and we know this statement is not the  racist ranting of disaffected whites)  because the Minister of Land Affairs has told us so. This is not surprising. If one takes land from people who have the skills and the knowledge to run successful agribusinesses and one gives it to people who were never given the opportunity to develop the skills necessary to make a success of a large scale agribusiness, chances are that food production on those farms will decline.

If all the land stolen from black South Africans were handed back without a massive, highly effective, skills transfer programme, food production would collapse and many South Africans (mostly poor and black) would starve. We know such a programme is not presently in place, despite the relatively modest scope of land redistribution efforts, so chances that it will be in place if large scale redistribution were to be undertaken are zero percent.  As skills transfers would have to conducted by the very people whose land were repossessed without compensation, it is rather unlikely that they would be eager to take part in such a programme. By preventing the large scale transfer of white-owned agricultural land to black South Africans, it could be argued that section 25 of the Constitution protects the interests of all South Africans – even if it unfortunately leaves much of the productive farm land in the hands of white farmers.

This might not be emotionally pleasing and it might fly in the face of our sense of justice, but it is the reality any government in South Africa has to live with.

Section 25 constructs a careful regime of land reform, coupled with the right to redistribute white owned land after payment of fair compensation. In any case, there is no evidence that in its absence, the government would have proceeded with large scale redistribution of white owned land. This is because the government is scared out of its wits of foreign investors and South Africa’s image amongst those investors, so they are not likely to do anything that would scare away those investors. Even if this was not the case, large scale redistribution of land would have required a relatively efficient Department to drive the process. As the department would not even be able to organise a beer fest in a brewery, the current Department would not be able to drive a large scale land reform programme.

Granted, there is much wrong with the land reform process in South Africa. The willing buyer, willing seller concept (which is not mandated by the Constitution) is not working. The Department seems to be clueless and lacks the political will and the skills to provide the necessary support for emerging black farmers. Questions about nepotism and incompetence are often asked. This is not the fault of the Constitution but the government of the day and of the officials who are not doing their jobs.

It is easy to blame the constitutional settlement for everything that remains wrong in South Africa. Easy, but also wrong.

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