An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Black Management Forum President Jimmy Manyi yesterday argued that the Constitution needed to be changed because some of its clauses hampered transformation. I would have liked to think that Manyi was starting a principled debate about the ways in which we could build a more prosperous and fair society, one in which we also cared for the 50% of the population that are economically and socially marginalised, who will never get a government tender and who are in desperate need of basic education, food, shelter and basic health care.
Sadly, Manyi’s remarks did not address the needs of the poor, but instead focused on those provisions of the Constitution that stand in the way of the new class of greedy kleptocrats who wish to loot the state to enrich themselves – to the detriment of the poor (and in fact to the detriment of all of us who do not know the right people to secure inflated government tenders). In a distinctly Malemaesque way, Manyi talked the radical talk in order to mask the deeply conservative and and anti-democratic nature of his views.
Manyi complained about the property clause because, according to him, it required that “fair value” had to be paid in appropriating land. This was a problem because “fair value” had become “market value” resulting in government having to pay enormous amounts of money when appropriating land. According to SAPA he then went on to say the following:
Another problem was the transformation clause. “It appears the Constitution does not support the transformation agenda in this country,” he said. He referred to court cases where previously disadvantaged individuals lost their court bids when trying to obtain positions for tenders.
A third problem was freedom of expression as enshrined in the Constitution. Manyi asked whether the South African media had taken this right too far. “Why is it that the media can have a field day railroading the office of the president without (sic) impunity?” Two further issues he felt needed reviewing were Section 27 of the Constitution which pronounced on procurement and, lastly, culture.
There are several ways to respond to these remarks. One could point out that, if correctly reported, the remarks show a remarkable lack of knowledge about the Constitution and the laws of the country. One would have thought that a high profile person like Manyi would have done a bit of reading – at least of the text of the Constitution – before delivering a speech. The property clause does not speak of “fair value” as Manyi claims. Instead section 25 talks about compensation that are:
just and equitable, reflecting 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.
As section 25 makes clear, the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources. The section also emphasises that property is not limited to land but also includes mineral and other rights in property. The “willing buyer, willing seller” policy, which focuses almost exclusively on the market value of properties to be expropriated, is not one required by the Constitution. It is a policy adopted by the government in which Mr Manyi serves as Director General and can be changed without amending the Constitution.
The only reason to amend the property clause would be to allow for the expropriation of land without paying any compensation. In other words, one would only need an amendment to the Constitution if one wanted to allow the stealing of property (perhaps to hand such property to Mr Manyi and his friends?).
I am one of those weird people who think two wrongs don’t make a right. Just because land was stolen by white settlers during colonial times does not mean it would be fair or wise to steal the land again. This does not mean that land redistribution is not imperative. It does mean that such redistribution should be done fairly and wisely and not in a corrupt and greedy manner to favour a few cronies of the governing party. The Constitution prevents exactly this latter kind of land redistribution and hence it is not well liked by those who might benefit immediately from a more robust and unfair approach to the issue.
Second, there is no “transformation clause” in the Constitution. Karl Klare – a US academic – published an article describing the South African Constitution as a “post-liberal” document and argued that it contained a transformative vision. The Constitutional Court has adopted this notion and the Bill of Rights as a whole is now viewed by that Court as facilitating transformation. If Manyi had even a basic knowledge of the Constitutional Court jurisprudence on fishing quotas (in the Bato Star case) and affirmative action (in the Van Heerden case), he would have known that he was embarrassing himself and showing a shocking ignorance when he said that the Constitution does not support transformation.
Third, section 27 does not “pronounce” (how I hate that word) on procurement, but on the right of access to health care services and sufficient food and water. Section 217 however requires that when an organ of state contracts for goods and services it must do so in a “fair, equitable, transparent, competitive and cost-effective manner.
However it continues by stating that this does not prevent the organs of state from implementing a procurement policy providing for categories of preference in the allocation of contracts; and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination. In other words, procurement policies must be fair and cost effective, but can take into account previous disadvantage when awarding tenders.
Manyi gives the game away when he complains that some black South Africans have occasionally lost their court bids when trying to secure tenders. This would have happened because the process was not fair, equitable, transparent, competitive or cost-effective and tenders were awarded fraudulently. In other words, Manyi is complaining because the Constitution limits the ability of tenderpreneurs to milk the state dry through fraudulent means.
Where such tenderpreneurs are awarded highly inflated contracts (the kind of contracts that forces the state to pay R27 for a bread and R50 000 for a desktop computer) because they are black and knows Julius Malema or has made a donation to President Jacob Zuma’s legal fees, courts might well find against the previously disadvantaged tenderpreneur because the awarding of the tender would not comply with section 217 of the Constitution.
It is important to understand that such rulings are not anti-transformation but PRO-transformation. They are based on the view that the state has a duty to use its money wisely in order to assist the poor and marginalised who depend on the state for services and for assistance to help improve their lives. Manyi does not like this: stuff the poor if one can get rich quick! He is speaking in support of the group of kleptocrats who want to secure highly inflated tenders that would harm the poor and marginalised because they would enrich a few lucky souls with the right connections. In this sense, Manyi is deeply conservative and even reactionary, as his views are based on greed, not on any high moral principles associated with real transformation.
This seems to me to expose the battle at the heart of the ANC. It is a battle between those who want to do the right thing and want to ensure that the government acts wisely and fairly to help create a society in which all of us can live in dignity and respect and those who do not care one bit about the poor and want to get rich quick by cheating the rest of us and by looting the state so that they can afford Breitling watches and Johnny Walker Black.
The latter group – the opportunists, the crooks and the charlatans – do not like democracy and the openness and transparency that goes with it. No wonder Manyi is upset about the fact that we live in a democracy in which we can “railroad the office of the President” with impunity. When one is busy stealing from the people one would want to ensure political backing from the President for this, so one would need to ensure that the President and his office is protected from any criticism at all times. Democracy and transparency is not good for kleptocrats.
Who will win this battle within the ANC? Put differently, will the greed of the few trump the anger, frustration and need of the many? Or will the greedy be able to silence the masses by making radical noises while they implement their reactionary anti-poor schemes? Who knows.BACK TO TOP